Must a family judge report a self-represented lawyer’s positive drug test from a confidential custody case?

Short answer West Virginia JIC Opinion 2018-15 finds no current duty to breach Family Court confidentiality and report the test to Lawyer Disciplinary Counsel, while leaving later action open if further facts emerge.
Bar
JUDICIAL-WV
Issued
August 2, 2018

Apply this to your situation

This page answers the general question as of 2018. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.

Currency note: this opinion is from 2018
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

A lawyer appearing on the lawyer’s own custody matter tested positive for marijuana after the family judge ordered drug testing. The judge asked whether the result had to be reported to Lawyer Disciplinary Counsel despite confidentiality rules.

Applying Rule 2.15(B), (D), the Commission found no present obligation to breach Family Court Rule 6 confidentiality and report the result. It said later facts might require reconsideration, including possible reporting.

In practice

The opinion addresses the facts known at that point and expressly leaves the reporting question open if circumstances develop.

Common questions

Q: Was immediate reporting required?

A: No. The Commission found no present duty to report the result.

Q: Could additional facts change the answer?

A: Yes. The opinion says later facts may require reconsideration and possibly a report.

Background and rules framework

Rule 2.15(B), (D) concerns reporting or other action when a judge has specified knowledge of lawyer misconduct. The Commission weighed those provisions against Family Court Rule 6 confidentiality on the stated facts.

Citations and references

West Virginia Code of Judicial Conduct:

  • Rule 2.15(B), (D), lawyer misconduct reporting and action.

Court rules:

  • Rule 6 of the Rules of Practice and Procedure for Family Court, confidentiality.

See also

Source

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

JUDICIAL INVESTIGATION COMMISSION
City Center East - Suite 1200 A
4700 MacCorkle Ave ., SE
Charleston, West Virg inia 25304
(304) 558-0169 • FAX (304) 558-083 1

August 2, 2018

Re: JIC Advisory Opinion2018-15.

Dear

Your recent request for an advisory op1mon was reviewed by the Judicial Investigation Commission. The facts giving rise to your request are as follows:

In late July 2018, an attorney appeared in your court representing himself on his custody case. As part of the proceedings and based on allegations, you required both parties to undergo immediate drug testing, and the lawyer tested positive for marijuana. You want to know if you are required to report the lawyer to the Office of Lawyer Disciplinary Counsel ("ODC") given the confidentiality requirements set forth in Rule 6 of the Rules of Practice and Procedure for Family Corut.

To address the questions, the Commission has reviewed Rule 2.15(B) and (D) of the Code of Judicial Conduct which provides:

(B) A judge having knowledge that a lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question regarding the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate authority.

(D) A judge having knowledge indicating a substantial likelihood that a lawyer has committed a violation of the Rules of Professional Conduct shall take the appropriate action.

JIC Advisory Opinion 2018-15
August 2, 2018
Page 2 or 2

Based upon the foregoing, the Commission is of the opinion that at this juncture you have no obligation to breach the rule of confidentiality and repo1i the info1mation to the ODC. However, as circumstances develop, additional facts may require you to revisit the issue and consider fmiher action including the possibility of reporting the infmmation to ODC.

Thank you for your inquiry. If there is any further question regarding this matter please do not hesitate to contact the Commission.

Sincerely,

~~
Ronald E. Wilson, Chairperson
Judicial Investigation Commission

REW/tat

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