Model Law Firm Personnel Impairment Policy

Model Law Firm Personnel Impairment Policy

Introduction

For over twenty years the New York State Bar Association has been committed to assisting lawyers and their support staff who have impairments arising from drug and alcohol abuse and dependency. The NYSBA’s Lawyers Assistance Program has expanded its scope beyond drugs and alcohol, to depression and other disorders that affect attorney’s quality of life and performance on the job. The purpose of this model policy is to provide law firms with a framework for handling early intervention and referral. The model policy is intended for use as part of the firm’s personnel handbook.

Model Policy

Substance Abuse Prevention and Referral Policy

This law firm/legal department is committed to the prevention of alcohol and substance abuse, and to assisting our legal and support staff to obtain counseling and/or treatment to deal with the effects of such abuse. It is not the purpose of this policy to embarrass or punish such individuals, but rather to assist them to recover.

This policy applies to attorneys and staff while they are performing their duties for the firm, both at the workplace and off site. The policy will be publicized in the workplace, and placed in the personnel handbook. A contact person, such as a managing partner, human resources director, or designated person will be responsible for implementing the policy but will not undertake counseling or treatment. The contact person should notify individuals of the availability of Lawyers Assistance programs which can refer such persons to agencies for counseling and treatment.

Where the firm has the ability to provide for counseling and treatment, either through an employee fund or insurance, it may do so. Where the firm does not have such resources, Lawyers Assistance Programs can assist in referring professional personnel to a variety of services and treatment centers. Non-professional personnel may access such services though Employee Assistance Programs.

Professional Conduct Requirements and Illegal Activities

While the primary objective of the policy is to provide a means for the recognition and treatment of impaired personnel, those impairments may lead to, or be the cause of, criminal violations, such as possession of illegal drugs, driving while intoxicated or conversion of clients’ funds, or to violations of professional conduct standards.

The firm/legal department expects its staff to maintain a high level of professionalism, appropriate to their position. As such, the firm prohibits the consumption sharing and/or selling, use and/or possession of illegal drugs in the workplace, or when the effects of such drugs and/or abuse of alcohol may impair the employee’s job performance.

The policy encourages self referrals, as well as other referrals, but the policy statement and guidelines also recognize that both professional and administrative personnel may face statutory obligations to report and not to conceal criminal conduct and that professionals may confront the additional professional conduct obligation or reporting the wrongful conduct of a fellow lawyer.

The reporting obligations are set forth in Part 1200 – Rules of Professional Conduct, as follows:

Rule 8.3:

Reporting Professional Misconduct

a)  A lawyer who knows 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 shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.

b)  A lawyer who possesses knowledge or evidence concerning another lawyer or a judge shall not fail to respond to a lawful demand for information from a tribunal or other authority empowered to investigate or act upon such conduct.

c)  This Rule does not require disclosure of:

1)  information otherwise protected by Rule 1.6; or

2)  information gained by a lawyer or judge while participating in a bona fide lawyer assistance program.

Rule 8.4:

Misconduct

A lawyer or law firm shall not:

a)  violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

b)  engage in illegal conduct that adversely reflects on the lawyer’s honesty, trustworthiness or fitness as a lawyer;

c)  engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

d)  engage in conduct that is prejudicial to the administration of justice;

e)  state or imply an ability:

1)  to influence improperly or upon irrelevant grounds any tribunal, legislative body or public official; or

2)  to achieve results using means that violate these Rules or other law;

f)  knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law;

g)  unlawfully discriminate in the practice of law, including in hiring, promoting or otherwise determining conditions of employment on the basis of age, race, creed, color, national origin, sex, disability, marital status or sexual orientation. Where there is a tribunal with jurisdiction to hear a complaint, if timely brought, other than a Department Disciplinary Committee, a complaint based on unlawful discrimination shall be brought before such tribunal in the first instance. A certified copy of a determination by such a tribunal, which has become final and enforceable and as to which the right to judicial or appellate review has been exhausted, finding that the lawyer has engaged in an unlawful discriminatory practice shall constitute prima facie evidence of professional misconduct in a disciplinary proceeding; or

h)  engage in any other conduct that adversely reflects on the lawyer’s fitness as a lawyer.

Rule 1.6:

Confidentiality of Information

a)  A lawyer shall not knowingly reveal confidential information, as defined in this Rule, or use such information to the disadvantage of a client or for the advantage of the lawyer or a third person, unless:

1)  the client gives informed consent, as defined in Rule 1.0(j);

2)  the disclosure is impliedly authorized to advance the best interests of the client and is either reasonable under the circumstances or customary in the professional community; or

3)  the disclosure is permitted by paragraph(b). “Confidential information” consists of information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential. “Confidential Information” does not ordinarily include (i) a lawyer’s legal knowledge or legal research or (ii) information that is generally known in the local community or in the trade, field or profession to which the information relates.

b)  A lawyer may reveal or use confidential information to the extent that the lawyer reasonable believes necessary:

1)  to prevent reasonable certain death or substantial bodily harm;

2)  to prevent the client from committing a crime;

3)  to withdraw a written or oral opinion or representation previously given by the lawyer and reasonably believed by the lawyer still to be relied upon by a third person, where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud;

4)  to secure legal advice about compliance with these Rules or other law by the lawyer, another lawyer associated with the lawyer’s firm or the law firm;

5)  i. to defend the lawyer or the lawyer’s employees and associates

against an accusation of wrongful conduct; or

ii. to establish or collect a fee; or

6)  when permitted or required under these Rules or to comply with other law or court order.

c)  A lawyer shall exercise reasonable care to prevent the lawyer’s employees, associates, and others whose services are utilized by the lawyer from disclosing or using confidential information of a client, except that a lawyer may reveal the information permitted to be disclosed by paragraph (b) through an employee.

Confidentiality of Lawyers Assistance Services

All Lawyers Assistance Programs are strictly confidential and protected under Section 499 of the Judiciary Law (as amended by Chapter 327 of the Laws of 1993).

1. Confidential Information Privileged. The confidential relations and communications between a member or authorized agent of a lawyer assistance committee sponsored by a state or local bar association and any person, firm or corporation communicating with such a committee, its members or authorized agents shall be deemed to be privileged on the same basis as those provided by law between attorney and client. Such privileges may be waived only the person, firm or corporation that has furnished information to the committee.

1. Immunity From Liability. Any person, firm or corporation in good faith providing information to, or in any other way participating in the affairs of any of the committees referred to in subdivision one of this section, shall be immune from civil liability that might otherwise result by reason of such conduct. For the purpose of any proceeding, the good faith of any such person, firm or corporation shall be presumed.

Local Bar Associations may serve as referral sources for lawyers assistance services, however, the New York State Bar Association maintains a statewide confidential Helpline at 1-800-255-0569