Does reporting an impaired lawyer's misappropriation of client funds to a lawyer-assistance program satisfy a lawyer's duty to report misconduct under Rule 8.3(a)?

Plain-English summary

The Committee was given a hypothetical in which Attorney #1 discovered that Attorney #2, an active alcoholic, had misappropriated client funds. Attorney #1 contacted the Lawyer Impairment Committee about the alcoholism and the Lawyer Assistance Committee about the misappropriations, and members of the Lawyer Assistance Committee worked with Attorney #2 to repay the money. The inquiring attorney asked whether Attorney #1 had discharged his obligation to report unethical conduct under Rule 8.3(a) or was also required to report the matter to the Committee on Legal Ethics, suggesting that Attorney #1 had discretion to treat the Lawyer Assistance Committee as the appropriate professional authority.

The Committee disagreed. It concluded that Attorney #1 had a duty to report the misappropriation of client funds to the Committee on Legal Ethics, because there is no question that misappropriation of client funds raises a substantial question as to a lawyer's honesty. Reporting to the Lawyer Assistance Committee did not relieve Attorney #1 of this obligation; the Committee on Legal Ethics is the appropriate professional authority for reporting unethical conduct regardless of a lawyer's impairment. The Committee explained the different functions of the bodies involved: the Lawyer Impairment Committee counsels lawyers with drug or alcohol problems, and the Lawyer Assistance Committee assists attorneys with emotional or mental disorders, health problems, and office-management problems such as fee overcharging or disorganization. Members of both committees are exempt from the reporting requirements of Rule 8.3(a) unless the attorney refuses to discontinue the violation and to seek rehabilitation, pursuant to Rule 8.3(d). While those committees support lawyers, the Committee on Legal Ethics has a judicially imposed obligation to protect the public and reassure it as to the reliability and integrity of attorneys, citing Committee on Legal Ethics v. Pence, 161 W. Va. 240, 253, 240 S.E.2d 668, 675 (1977).

The Committee stressed that theft of client funds is one of the most serious acts of misconduct, that it has recommended sanctions for such conduct regardless of restitution or impairment, and that impairment is only a mitigating factor and restitution only possible mitigation, not justification. Concerned that an impaired attorney might revert to old behavior under stress and embezzle large sums before the problem is discovered, the Committee said it always encourages impaired lawyers and their peers to seek help from the impairment or assistance committees, but if peers learn of misconduct within the meaning of Rule 8.3(a) they must also contact the Committee on Legal Ethics, with one exception: when a peer who contacted those committees participates in an intervention and the impaired lawyer discloses the misappropriation during the intervention, the participating lawyer can fairly be considered a representative of the impairment or assistance committee and is thus exempt, because complete candor is essential to the intervention process and imposing a reporting requirement on a participating attorney could chill it.

Currency note

This opinion was issued in 1992, before the West Virginia Supreme Court of Appeals' comprehensive 2015 revision of the West Virginia Rules of Professional Conduct (effective January 1, 2015). 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: Does telling a lawyer-assistance program about another lawyer's theft of client funds satisfy the duty to report?

A: No. The opinion concluded the Committee on Legal Ethics is the appropriate professional authority under Rule 8.3(a), and reporting to the Lawyer Assistance Committee does not discharge that duty.

Q: Does the impaired lawyer's restitution or impairment excuse the reporting duty?

A: No. The opinion concluded impairment is only a mitigating factor and restitution only possible mitigation, neither a justification, and the duty to report serious misconduct remains.

Q: Is there any situation where a peer need not report?

A: Yes. The opinion recognized an exception where a peer participates in an intervention with the impairment or assistance committees and the impaired lawyer discloses the misappropriation during the intervention; the participating lawyer is then treated as a committee representative exempt under Rule 8.3(d).

Background and rules framework

The opinion interpreted West Virginia's Rule 8.3 (Model Rule 8.3) on reporting professional misconduct. Rule 8.3(a) requires a lawyer with knowledge that another lawyer committed a violation raising a substantial question as to the lawyer's honesty, trustworthiness, or fitness to inform the appropriate professional authority; Rule 8.3(d) exempts members of an approved lawyers' assistance program in defined circumstances. The Committee identified itself as the appropriate professional authority, grounding its public-protection role in Committee on Legal Ethics v. Pence.

Citations and references

Rules of Professional Conduct:

• Model Rule 8.3 / WV Rule 8.3(a) (reporting professional misconduct to the appropriate authority)
• Model Rule 8.3 / WV Rule 8.3(d) (exemption for lawyers' assistance program participants)

Cases:

• Committee on Legal Ethics v. Pence, 161 W. Va. 240, 253, 240 S.E.2d 668, 675 (1977), the Committee's obligation to protect the public and assure the integrity of attorneys

See also

• ABA Formal Op. 03-431: Reporting an Impaired Lawyer
• ABA Formal Op. 04-433: Reporting a Non-Practicing Lawyer

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7d0fbd7b2777acc1f5.pdf

Original opinion text

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

L.E.I. 92-04
DUTY TO REPORT MISCONDUCT OF AN IMPAIRED LAWYER

The Committee on Legal Ethics was given the following hypothetical:

Attorney #1 discovered that attorney #2, who is an active alcoholic, had "misappropriated client funds." Attorney #1 contacted the Lawyer Impairment Committee for attorney #2's alcoholism and contacted the Lawyer Assistance Committee with respect to the misappropriations. Members of the Lawyer Assistance Committee worked with attorney #2 to repay the money.

The enquiring attorney asked: Has attorney #1 discharged his obligation to report unethical conduct under Rule 8.3(a) of the Rules of Professional Conduct or is he also required to report the matter to the Committee on Legal Ethics.

Rule 8.3(a) states:

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

The enquiring attorney suggested that attorney #1 had the discretion to determine that the Lawyer Assistance Committee was the "appropriate professional authority" within the meaning of the Rule.

The Committee on Legal Ethics does not agree with this interpretion and wishes to provide guidance to attorneys faced with similar situations. Attorney #1 had a duty to report the misappropriation of client funds to the Committee on Legal Ethics.

There is no question that misappropriation of client funds is the type of conduct which raises a question as to a lawyer's honesty. Reporting the misconduct to the Lawyer Assistance Committee did not relieve attorney #1 of this obligation. The Committee on Legal Ethics is the "appropriate professional authority" to report unethical conduct, regardless of a lawyer's impairment. The only exception is if attorney #1 learned of the misappropriation of client funds while assisting the Lawyer Impairment Committee or the Lawyer Assistance Committee in an intervention.

The different functions of the committees involved necessitates the position of the Committee on Legal Ethics. The Lawyer Impairment Committee counsels lawyers with drug or alcohol problems. The Lawyer Assistance Committee has less well-defined functions. It assists attorneys with emotional or mental disorders, such as bi-polar conditions, health problems, such as senility, and office management problems, including fee overcharging or disorganization. Members of both committees are exempt from the reporting requirements of Rule 8.3(a) unless the attorney refuses to discontinue the violation and to seek a program of rehabilitation, pursuant to Rule 8.3(d).

While the purpose of these two committees is to provide support to lawyers, the Committee on Legal Ethics has a judicially imposed obligation to protect the public and reassure the public as to the reliability and integrity of attorneys. Committee on Legal Ethics v. Pence, 161 W. Va. 240, 253, 240 S.E.2d 668, 675 (1977).

Theft of client funds is one of the most serious acts of misconduct an attorney can commit. The Committee has conducted disciplinary hearings and recommended sanctions to the Supreme Court of Appeals for attorneys who have engaged in such conduct, regardless of whether there was restitution or whether an impairment existed. Impairment is only a mitigating factor, not a justification. Likewise, restitution does not negate the misconduct; it only serves as possible mitigation.

With attorney theft of client funds unfortunately on the rise, the Committee on Legal Ethics is concerned that the impaired attorney in the hypothetical might revert to his or her old behavior under stress. Large sums of money could be embezzled before the Committee discovers the problem. The attorney's clients, unaware of the prior misappropriation, might be placed in a risky position the Committee could have prevented.

The Committee on Legal Ethics always encourages impaired lawyers to seek help from the Lawyer Impairment Committee or Lawyer Assistance Committee, no matter how serious their misconduct. The Committee on Legal Ethics also encourages the lawyers' peers to contact those two committees. But if the peers learn of unethical misconduct within the meaning of Rule 8.3(a), they must also contact the Committee on Legal Ethics, with one exception.

When an attorney contacts the Lawyer Impairment or Assistance Committee about someone else, he or she sometime participates in an intervention or a meeting with members from those committees and the impaired lawyer. Should, for example, the impaired lawyer disclose during the intervention that he or she has misappropriated client funds, the participating lawyer can fairly be considered a representative of the Lawyer Impairment or Assistance Committee and thus exempt for the reporting requirements of Rule 8.3(a). Complete candor is essential to the intervention process, and imposing a reporting requirement on a participating attorney could chill the process.

Dated:

Charles M. Love, III, Chairman
Committee on Legal Ethics