Must a family judge report a self-represented lawyer’s positive drug test from a confidential custody case?
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.
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
- Landing page: West Virginia Judicial Investigation Commission advisory opinions
- Original PDF: JIC Advisory Opinion 2018-15, redacted
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
What do the rules say today, for your facts?
This opinion is from 2018. Ezel checks the current rules of professional conduct in your state against your situation and cites the rules it relies on.
Opens in Ezel Pro.
- Checks the law as it stands today, not only this page
- Cites every source it relies on, so you can verify it
- Chat, drafting and research in one workspace