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:

  1. 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.
  2. 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.
  3. 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.
  4. 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