Are members of a bar association's lawyer-assistance committee excused from the duty to report ethical violations they learn about while helping an impaired attorney?

Plain-English summary

Lawyers Concerned for Lawyers, a Nashville Bar Association committee, asked whether its members were ethically obligated to report violations they discovered while attempting to help attorneys with alcohol or drug problems. The Nashville Bar had studied the issue and found that professional treatment programs achieved a proven recovery rate for chemically dependent attorneys, and that every such program shared two features: it reached out to help the dependent attorney, and all communications with or about that attorney were kept confidential. The opinion cited contemporary data on the scale of the problem, including a National Institute on Alcohol and Alcohol Abuse estimate that ten percent of the population was alcoholic or chemically dependent, a 1980 ABA survey finding alcohol-abuse programs at a substantial share of state and local bars, and a Minnesota survey finding chemical dependency implicated in at least ten percent of grievances reported nationally, rising to fifteen to twenty percent of cases resulting in public discipline or disbarment.

The opinion reasoned that requiring committee members to report violations under a literal reading of DR 1-103 would conflict with Canon 1, the broader principle from which DR 1-103 was derived, because no attorney would seek help, and no friend or family member would refer one, without assurance of confidentiality. On that basis, the opinion relieved officially elected members of the Nashville Bar's Alcohol and Drug Abuse Committee (Lawyers Concerned for Lawyers) from their Canon 1 reporting obligation, but only in connection with, and only during, their work attempting to help attorneys with alcohol or drug abuse problems; in all other respects and at all other times, committee members remained bound by Canon 1. The opinion also made clear it did not prevent the Board from proceeding against any attorney on a complaint filed by a source other than a committee member acting in that protected capacity.

Currency note

Vacated. The Board of Professional Responsibility vacated Formal Ethics Opinion 83-F-48 on September 11, 2015, "due to changes in the law or rules." Before that, the opinion was expanded by Formal Ethics Opinion 87-F-48(a) on June 10, 1987, to cover all program participants and additional bar associations' programs. This opinion was also issued in 1983, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. A vacated opinion has no continuing force and is not the Board's current guidance. It is reproduced and summarized here only as a historical research record. Do not rely on it as current; verify the current reporting and lawyer-assistance rules before acting.

Common questions

Q: Did Lawyers Concerned for Lawyers committee members have to report ethical violations they learned about while helping an impaired attorney?

A: As originally issued, no. The opinion relieved officially elected committee members of their Canon 1 reporting obligation for violations discovered in connection with their committee work helping chemically dependent attorneys.

Q: Why did the Board create this exemption?

A: The opinion reasoned that a literal reading of DR 1-103 requiring reports would conflict with Canon 1's broader goal of improving the bar's integrity and competence, because the program could not work without assured confidentiality.

Q: Did the exemption apply to a committee member's conduct outside the program?

A: No. The opinion limited the exemption to violations learned in connection with, and only during, a member's work on the committee's stated purpose of helping attorneys with alcohol or drug abuse problems; members remained bound by Canon 1 at all other times.

Q: Is this opinion still in force?

A: No. It was expanded by Opinion 87-F-48(a) in 1987 and vacated by the Board on September 11, 2015. It is preserved here only as a historical research record.

Background and rules framework

The opinion interpreted former DR 1-103 (the mandatory duty to report known ethical violations) in light of Canon 1 of the Code of Professional Responsibility (the broader principle of maintaining the integrity and competence of the legal profession). The modern analog is Model Rule 8.3 / Tennessee RPC 8.3 (reporting professional misconduct).

Citations and references

Rules of Professional Conduct (former Code):

• DR 1-103 (mandatory duty to report known ethical violations), interpreted in light of Canon 1. Modern analog: Model Rule 8.3 / Tennessee RPC 8.3

Other opinions cited:

• Tennessee Formal Ethics Opinion 87-F-48(a) (expanding this opinion's immunity to all program participants and additional bar associations)

See also

• Tenn. Ethics Op. 87-F-48(a): Expanding Lawyer-Assistance Reporting Immunity (Vacated)
• Tenn. Ethics Op. 91-F-126: Confidentiality and Reporting in a Bar Colleagues Mentoring Program
• ABA Formal Op. 03-431: Reporting an Impaired Lawyer Outside the Firm
• WV Ethics Op. 92-04: Duty to Report Misconduct of an Impaired Lawyer

Source

• Landing page: https://www.tbpr.org/ethic_opinions/83-F-48

Original opinion text

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

83-F-48 - Vacated*

*Vacated by the Board of Professional Responsibility on September 11, 2015 due to changes in the law or rules.

FORMAL ETHICS OPINION 83-F-48

Lawyers Concerned for Lawyers, a committee of the Nashville Bar Association, has inquired as to the ethical obligation of the committee members to report ethical violations discovered while attempting to help attorneys with alcohol or drug problems.

The Nashville Bar Association has recognized and expressed a concern for the need of an alcohol and drug abuse program. A study was made to determine the feasibility of developing such a program. It was found that professional treatment programs were available and that there was a definite proven recovery rate for alcohol and drug dependent attorneys who sought help. Therefore, it was recommended that a program be established.

The program was approved and adopted by the Nashville Bar Association. The program has two characteristics which are found in all similar programs. One is to reach out to help the dependent attorney, the other is that all communications with or about the attorney are confidential. The Nashville Bar represented that it was almost universally recognized that a program cannot operate successfully without the assurance that the members of the committee will keep all communications in total and complete confidence.

The Nashville Bar, in its investigation of such programs, discovered the following:

• The National Institute on Alcohol and Alcohol Abuse estimates that 10% of the population of the United States are alcoholics or otherwise chemically dependent. Alcoholism is classified as a disease by the American Medical Association because it has a clearly defined symptomatology, a downward progression if untreated, but arrestable with proper treatment and continuing care.

• In 1980 the American Bar Association Division of Bar Services surveyed all state and local bar organizations and found that 26 of the 56 state level bar associations (46%) and 37 of the 178 local bar associations (21%) reported alcohol abuse programs in existence.

• In 1980 the Lawyers Professional Responsibility Board of Minnesota conducted a survey of discipline counsel throughout the nation, soliciting comments about the involvement of attorney alcoholism in disciplinary cases. Responses were obtained from 27 jurisdictions with estimates that alcoholism was involved in at least 10% of all grievances reported. Alcoholism was established to be involved in more than 10% of cases in which private discipline was imposed, and 15% to 20% in cases where public discipline and disbarment resulted.

• The problem of attorney alcohol and drug abuse is one of enormous cost and magnitude. In many instances, malpractice or severe discipline may be prevented by barsponsored programs. Many attorneys exhibit early warning signs of impairment before they have committed professional misconduct. The legal profession is anxious to discover and help any attorney who suffers a problem that may adversely affect his or her capacity to practice law.

The dependent attorney almost invariably ends up damaging his or her reputation as well as that of the bar. One of the most important elements of a successful alcohol and drug abuse program is confidentiality. Every program in existence emphasizes confidentiality and recognizes that the program will not work without it. A concerned friend or family member is not likely to seek help for an attorney if they feel that the information may be used against him or her in a disciplinary proceeding. No attorney who suspects that he or she may have a problem would seek help from a bar-sponsored program in the absence of confidentiality.

The Nashville Bar wishes to implement the program and begin efforts to reach out to the dependent attorneys and further states that the Canons embody the general concepts from which the Disciplinary Rules are derived.

In view of the absolute necessity of confidentiality to a successful alcohol and drug abuse program, an interpretation of DR 1-103 requiring bar-sponsored alcohol and drug abuse committee members to report ethics violations conflicts with Canon 1 from which the rule was derived. Such an interpretation undermines the well-conceived effort of the organized bar to maintain the integrity and improve the competence of the bar to meet the highest standards. DR 1-103 was intended to embody rather than conflict with the general concepts of Canon 1.

Therefore, only members of the alcohol and drug abuse committee (Lawyers Concerned for Lawyers) officially elected by the Board of the Nashville Bar Association are relieved from their Canon 1 obligation to report ethical violations which come to their attention from any source in connection with, and only during the time involved, and for the limited purpose of carrying out their stated obligation to attempt to help attorneys with alcohol or drug abuse problems. In all other respects and at all other times, the members of the committee will continue to be bound by the clear requirements of Canon 1.

Nothing herein shall prevent the Board of Professional Responsibility from proceeding against any attorney concerning whom a complaint has been filed with this Board by any source other than those lawyers specifically relieved from their Canon 1 obligation by membership in the Alcohol and Drug Abuse Committee (Lawyers Concerned for Lawyers) of the Nashville Bar Association.

This 23rd day of May, 1983.

ETHICS COMMITTEE:

G. Wilson Horde

Jack C. Raulston

T. Maxfield Bahner

APPROVED AND ADOPTED BY THE BOARD