October 03, 2018

Policy

Latest Developments

Proposed Resolution 103 - ABA Model Impairment Policy for Legal Employers  

Proposed Resolution 103, which adopts an ABA Model Impairment Policy for Legal Employers and urges legal employers to do the same, will go before the ABA House of Delegates at the Annual Meeting in August. The sponsors of proposed Resolution 103 are the ABA Working Group to Advance Well-Being in the Legal Profession, an ABA Presidential Initiative led by President Hilarie Bass, and the Commission on Lawyer Assistance Programs (CoLAP).   

The foundation of this policy is the recognition that well-being is essential to an attorney's duty of competence, and that impairment is antithetical to both the competence and quality service expected by the clients of the legal employer. To support this duty, legal employers must demonstrate a commitment to the well-being of their personnel, to the prevention of impairments, and to assisting their employees in obtaining treatment when needed.

This policy deals only with the impairment of a legal employee, a sub-set of the overall well-being of a legal employee, and is not meant to encompass the panoply of all well-being initiatives that can be implemented in the legal employer setting. Further, this policy would reinforce and bring up to date an existing ABA policy passed by the House of Delegates in 1990, the Model Law Firm/Legal Department Personnel Impairment Policy and Guidelines.  

Everyone is encouraged to talk to their state delegates and other ABA entities to garner support for Resolution 103. Contact Tracy Kepler at tracy.kepler@americanbar.org to provide your support or feedback.


ABA 'Furiously Working' to Craft Proposal on Lawyers' Mental Health

From the The National Law Journal, May 21, 2018


ABA House of Delegates Adopts Lawyer Well-Being Resolution at Midyear Meeting

The ABA House of Delegates adopted Resolution 105 at the ABA Midyear Meeting in Vancouver, which supports the goal of reducing mental health and substance use disorders and improving the well-being of lawyers, judges and law students, and urges stakeholders within the legal profession to consider the recommendations set out in The Path to Lawyer Well-Being: Practical Recommendations for Positive Change from the National Task Force on Lawyer Well-Being.  

Resolution 105 was primarily sponsored by the Working Group to Advance Well-Being in the Legal Profession, an ABA Presidential Initiative. Resolution 105 was co-sponsored by the ABA Commission on Lawyer Assistance Programs, the ABA Standing Committee on Professionalism and the National Organization of Bar Counsel.


USPTO Launches Two Year Diversion Pilot Program

The Department of Commerce's United States Patent and Trademark Office (USPTO) is initiating a two-year Diversion Pilot Program for patent and trademark practitioners. The program offers practitioners who engaged in minor misconduct (with little, if any, harm to a client) as a result of physical, mental, or emotional health issues (including substance or alcohol abuse) or law practice management issues to enter into a diversion agreement and avoid formal discipline.


ABA Approves Changes to CLE Model Rule, Adding Substance Use, Mental Health Requirement

In February 2017, the ABA House of Delegates approved Resolution 106 amending the ABA Model Rule for Minimum Continuing Legal Education which includes a requirement for lawyers to receive at least one hour of mental health or substance use disorder programming every three years. It also calls for one hour of diversity and inclusion programming every three years. The Resolution was sponsored by the ABA’s Standing Committee on Continuing Legal Education, Commission on Lawyer Assistance Programs and Law Practice Division.

CLE Credit for Lawyer Wellness in Wisconsin

IL Supreme Court Mandates Mental Health, Substance Use and Diversity CLE

See a Comparison of Jurisdiction Rules to ABA MCLE Model Rule by State for developments on this rule. 


ABA Approves New Policy - Limits Use of Mental Health-Related Inquiries for Bar Admission

On August 3rd, 2015, the House of Delegates approved Resolution 102 which calls for character and fitness questions to address conduct rather than treatment or diagnoses when inquiring into a bar applicant's mental health history.

Access the ABA Commission on Disability Rights Bar Information for Applicants with Disabilities resources for state-by-state information on character and fitness questions related to mental health diagnoses. 


Other Policy News

AUDIO: Law Students Challenge Need for Mental Health Question (Radio IQ, April 24, 2018)

New Virginia Ethics Opinion on Duty of Non-Supervisory Attorneys to Report Impaired Lawyers (Supreme Court of Virginia Ethics Opinion 1887, August 30, 2017)

Attorneys: No downside to new rule on continuing education (The News-Gazette, September 15, 2017)

ABA Weighs Mandatory Substance Abuse CLE (LAW.Com, January 31, 2017)

Lawyers and marijuana: disciplinary cases on personal use highlight issues (Lexology, Law for Lawyers Today Blog, January 26, 2017)

Duty of Partners and Supervisory Lawyers in a Law Firm When another Lawyer in the Firm Suffers from Significant Impairment (Supreme Court of Virginia Ethics Opinion 1886, December 15, 2016)

Mental Health At Core Of Florida Bar Admission Case (WLRN, November 15, 2016)

ND Sup. Ct. approves new lawyer discipline rules that include diversion system for addictions / mental health issues (October 25, 2016)

Mental health questions on Florida bar application are discriminatory, suit says (Florida Politics, October 25, 2016)

Running From Trouble: When Lawyers Should Alert Ethics Officials (Connecticut Law Tribune, October 17, 2016)

Incentives for Workplace Wellness Programs: New Rules Provide More Guidance (State Bar of Wisconsin Inside Track, August 2016)

Policies

ABA Resolution 106 (February 2017) amends the ABA Model Rule for Minimum Continuing Legal Education to include a requirement for lawyers to receive at least one hour of mental health or substance use disorder programming every three years.

ABA Resolution 102 (August 2015) calls for character and fitness questions to address conduct rather than treatment or diagnoses when inquiring into an applicant's mental health history.

Guiding Principles for a Lawyer Assistance Program (Adopted February, 1991)

Model Lawyer Assistance Program (Revised 2004)

ABA Resolution adopting Model Law Firm/Legal Department Personnel Impairment Policy and Guidelines (August 1990)

Rules

Model Rule on Conditional Admission to Practice Law (Revised August 2009)

ABA Model Rule 8.3 of the Model Rules of Professional Conduct (Revised 2001)

Case Law Reviews

Access “Case Law Reviews” dating from 1990 to 2015 that summarize lawyer discipline cases involving substance use disorders and/or mental health issues.