Does a lawyer in a Lawyer Assistance Program support group have to report another member's disclosure of misconduct to the State Bar?

Plain-English summary

The North Carolina State Bar's Lawyer Assistance Program (LAP) runs support groups, sometimes called "accountability groups," for lawyers impaired by depression or other conditions, with a designated LAP representative present to facilitate each meeting. The committee was asked whether the openness those groups depend on would be undermined if Rule 8.3(a), the duty to report another lawyer's serious misconduct, applied to disclosures made in the group.

The opinion answered that a lawyer in such a group need not report another member's reportable conduct. To serve the LAP's purposes, the committee extended Rule 8.3(c)'s exception, which provides that the reporting duty does not require disclosure of confidential information, to communications during an accountability group meeting.

The opinion grounded that confidentiality in Rule 1.6(b), which treats as confidential the information a lawyer receives while acting as an agent of an approved lawyer or judge assistance program about another lawyer or judge seeking or being offered assistance. Because a LAP representative is present at each meeting, the duty of confidentiality reached all communications to the representative and among the members during the meeting.

Currency note

This opinion was issued in 2001, before North Carolina's adoption of the 2003 revisions to the Rules of Professional Conduct, and it cites the rule numbering then in effect (the reporting duty was then Rule 8.3 of the Revised Rules). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Must a lawyer report misconduct another lawyer discloses in a LAP group?

A: No. The opinion concluded that Rule 8.3(c)'s confidentiality exception extends to communications in a LAP accountability group, so the lawyer has no duty to report.

Q: Why does the confidentiality exception apply to these groups?

A: The opinion relied on Rule 1.6(b), which made confidential the information received while acting as an agent of an approved assistance program about a lawyer or judge seeking or being offered assistance.

Q: Does the protection cover what members say to each other, not just to the facilitator?

A: Yes. Because a LAP representative is present at each meeting, the opinion extended confidentiality to all communications to the representative and among the members during the meeting.

Background and rules framework

The opinion interpreted North Carolina Rule 8.3 of the Revised Rules of Professional Conduct, the analogue to Model Rule 8.3 (reporting professional misconduct), including its subsection (c) exception, together with Rule 1.6(b) (confidentiality of information), the analogue to Model Rule 1.6. The LAP's authority and purposes came from 27 N.C.A.C. 1D, Rule .0601.

Citations and references

Rules of Professional Conduct:

• MR 8.3 (reporting professional misconduct) / NC Rule 8.3(a) and (c)
• MR 1.6 (confidentiality of information) / NC Rule 1.6(b)

Regulations:

• 27 N.C.A.C. 1D, Rule .0601 (Lawyer Assistance Program purposes)

See also

• CA COPRAC Op. 2021-206: Lawyer Mental Impairment
• ABA Formal Op. 03-431: Reporting an Impaired Lawyer
• CBA Formal Op. 64: Duty to Report Lawyer Misconduct

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2001-formal-ethics-opinion-5/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Inquiry:

The Lawyer Assistance Program (LAP) of the North Carolina State Bar has the following three purposes: (1) to protect the public by assisting lawyers and judges who are professionally impaired by reason of substance abuse, addiction, or debilitating mental condition; (2) to assist impaired lawyers and judges in recovery; and (3) to educate lawyers and judges concerning the causes of and remedies for such impairment. 27 N.C.A.C. 1D, Rule .0601. To assist lawyers who are professionally impaired because of depression or another debilitating mental condition, LAP organizes support groups for impaired lawyers sometimes called "accountability groups." At a meeting of one of these groups, impaired lawyers share their experiences in an effort to support each other's recovery. A designated representative of LAP is present and facilitates each meeting of a group.

The therapeutic purpose of the group is to hold each member accountable and to encourage honesty and openness. However, Rule 8.3(a) of the Revised Rules of Professional Conduct provides "A lawyer having knowledge 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 North Carolina State Bar or the court having jurisdiction over the matter." If a participant in a support group is worried that he or she may be making a reportable disclosure, it will prevent the honesty and openness that is necessary to the therapeutic purpose of the group. It would be equally counter-productive for a lawyer who is listening to another participant's disclosures to be concerned that he or she may have to report the lawyer to the State Bar.

Does a lawyer who is participating in a LAP accountability group have to report the conduct of another lawyer in the group to the North Carolina State Bar if the other lawyer discloses conduct that is reportable under Rule 8.3(a)?

Opinion:

No. To promote the purposes of the LAP program, the exception to reporting found in Rule 8.3(c) is extended to communications during a meeting of an accountability group. Rule 8.3(c) states that the disclosure rule does not require disclosure of confidential information. Under Rule 1.6(b), confidential information includes "information received by a lawyer then acting as an agent of a lawyer's or judge's assistance program approved by the North Carolina State Bar or by the North Carolina Supreme Court regarding another lawyer or judge seeking assistance or to whom assistance is being offered." Since a representative of LAP is present at each meeting of an accountability group, the duty of confidentiality extends to all communications to the representative during the meeting as well as to any communication among the members of the support group during the meeting.