West Virginia Judiciary

Rules of the West Virginia Lawyer Assistance Program

Table of Contents

Preamble

The Supreme Court recognizes that a wide range of influences can detrimentally affect the performance of a lawyer. Prominent among such influences are the effects of chemical dependence or mental conditions that result from disease, disorder, trauma or other infirmity that impair the ability of a lawyer to practice. Lawyer impairment is detrimental to the interests of clients, litigants, our legal system, the general public, and the health and quality of life of the impaired lawyer. The vast majority of States have responded to the issue of lawyer impairment by creating funded lawyer assistance programs as contemplated by these rules, acknowledging the principle that every member of the bar has an obligation to the public to participate in an appropriate response to lawyer impairment. The Supreme Court finds that the West Virginia Lawyer Assistance Program is an appropriate method for addressing the issue of lawyer impairment and that the program will promote the integrity of the legal profession, thereby directly benefitting the people of West Virginia.

Rule 1. Establishment of the West Virginia Lawyer Assistance Program (WVLAP).

(a) Establishment. — There is hereby established a statewide lawyer assistance program to be known as the West Virginia Lawyer Assistance Program (WVLAP), which shall provide immediate and continuing help to lawyers who suffer from any physical or mental health conditions that affect their ability to practice.

(b) Purpose. — WVLAP has four primary purposes:

  1. To protect the interests of clients and the general public from harm caused by impaired members of the legal profession;
  2. To assist impaired members of the legal profession to begin and continue recovery;
  3. To educate the bench, the bar, and the public to the causes of and remedies for impairments affecting members of the legal profession; and
  4. To develop programs that emphasize prevention of conditions that might negatively affect members of the legal profession.

(c) Funding and Administration.

  1. The salary of the executive director, and staff, if any, their expenses, administrative costs, and the expenses of the members of WVLAP shall be paid from funds provided by The West Virginia State Bar. The total annual salaries, costs, and expenses of the program paid from State Bar member dues shall not exceed $60,000. Each year WVLAP shall submit a proposed annual budget for the next year to the Board of Governors detailing the projected revenues and expenses, subject to the $60,000 limitation.
  2. WVLAP shall seek to establish additional private and public sources of funding that may include gifts or bequests from any source and earnings on investments of the WVLAP fund, which may be used to supplement the annual salaries, costs, and expenses of the program.

Rule 2. Board of Directors.

(a) Management — The West Virginia Lawyer Assistance Program shall be administered by a board of directors appointed by the Board of Governors of the West Virginia State Bar. The WVLAP officers may make recommendations and nominations to the Board of Governors for appropriate persons to be appointed to the Board of Directors which shall be given due consideration by the Board of Governors. Officers of the Board of Directors shall consist of a chair, a vice-chair and a secretary. The officers shall be annually elected by the Board of Directors.

(b) Composition — The Board shall consist of fifteen (15) members. Board members shall be selected from the membership of the West Virginia State Bar, except that the Board may include up to four (4) persons who are not members of the West Virginia State Bar. The members shall have diverse experience, knowledge and demonstrated competence in the problems of chemical dependency or mental conditions that affect members of the legal profession. Geographic location of the Board membership shall be taken into consideration, and the membership shall be geographically diverse.

(c) Terms

  1. The Board of Governors shall appoint Board members for initial terms as follows: five members for one-year terms; five members for two-year terms; and five members for three-year terms.
  2. Subsequent appointments shall be for a term of three years.
  3. No member may serve more than two successive three-year terms, provided, however, that this limitation may be waived as to any member upon the affirmative vote of two-thirds of the Board and approval of the Board of Governors.

(d) Duties of the Board — The members of the Board shall have the following powers and duties:

  1. to establish WVLAP's by-laws, policies and procedures, consistent with the intents and purposes of these rules, that shall be established after reasonable notice to the Board of Governors and opportunity for comment;
  2. to operate the program to achieve its purpose and goals;
  3. to hire and fire the WVLAP executive director;
  4. To prepare, approve and present an annual budget to the Board of Governors;
  5. To make annual reports to the Supreme Court and Board of Governors.

(e) Meetings —  The Board shall meet quarterly. It shall also meet upon call of the chair, vice chair or upon the request of five (5) or more members upon reasonable notice to all members. A quorum for any meeting shall be a majority of the Board then existing.

Rule 3. Executive Director of the Program.

(a) Appointment/Hire. —  The Board shall recruit, hire, retain, and supervise, and the Board may terminate the WVLAP executive director.

(b) Qualifications. —  The executive director shall have sufficient experience and training to identify and assist impaired members of the legal profession and to work well with the volunteers, plus any additional qualifications deemed necessary by the Board.

(c) Duties and Responsibilities. — The executive director's duties and responsibilities shall include but not be limited to the following:

  1. To work with the Board to develop a vision and plan to ensure that the WVLAP becomes a vital and credible resource for the West Virginia legal community;
  2. To act as the initial contact point for all referrals to the WVLAP, whether voluntary or involuntary. The director should always remain accessible to current members or to any attorney seeking help, and should never be insulated from the telephone or from personal contact. The position will require that the director be ready, either alone or together with a program volunteer, to travel within the State to meet with an attorney in need of assistance;
  3. To help members of the legal profession and their families to secure counseling and treatment for chemical dependency and mental conditions, by maintaining current information on available treatment services, both those that are available without charge as well as paid services. In this regard the director will be responsible for evaluating referral resources such as individual health care providers (physicians, counselors, therapists, etc.) and treatment programs, and developing a resource listing that is available for lawyers and others using the services of WVLAP;
  4. Establish and maintain regular contact with other bar associations, agencies and committees that serve either as sources of referral or resources in providing help;
  5. To help lawyers, judges, law firms, courts and others, with the advice and assistance of a health care professional, identify and intervene with impaired members of the legal profession;
  6. To recruit, select, train and coordinate the activities of volunteer lawyers and judges who will provide assistance, and to maintain a current contact list of those volunteers. In furtherance of this duty the executive director should assist in coordinating volunteer support meetings and attend the meetings on a periodic basis to address questions or concerns of the volunteers;
  7. To work to establish and maintain a policy that ensures confidentiality, as required by these rules, as an essential component of the WVLAP. Included in this duty will be the establishment of rules or policies relating to maintaining the confidentiality of those seeking assistance (whether voluntary or involuntary), as well as the confidentiality of WVLAP volunteers;
  8. To plan and deliver educational programs to inform the public, the judiciary, state and local bar associations, law firms, civic and educational organizations of the advocacy of early intervention and prevention and the assistance that is available to those in need;
  9. To be responsible for the day-to-day administration of the WVLAP, including the development of job descriptions for WVLAP staff personnel, and the hiring, training, and assessing of such individuals, including clinicians, assistants, and office personnel, as budgetary considerations allow. The director will also be responsible, with the oversight of the Board, for development of the WVLAP's annual budget and oversight of its fiscal management;
  10. To act as the WVLAP’s liaison with the American Bar Association Commission on Lawyer Assistance Programs and with lawyer assistance programs throughout the country;
  11. To network with other professional assistance organizations located in West Virginia;
  12. To establish private and public sources of funding for WVLAP; and
  13. To perform such other duties and responsibilities as may be established by the Board.

Rule 4. Volunteers.

The program shall enlist volunteer lawyers and judges whose responsibilities may include:

Volunteers shall act on behalf of WVLAP only in accordance with these rules and the by-laws, policies, and procedures of the WVLAP, and shall be bound by the confidentiality provisions of these rules.

Rule 5. Services.

WVLAP may provide the following services as the Board determines feasible based upon the available financial, volunteer, and other resources:

Rule 6. Referrals.

(a) Self-referral — Any lawyer admitted to practice law in West Virginia may voluntarily contact the WVLAP seeking assistance.

(b) Referrals from Third-Parties — WVLAP shall receive referrals concerning any member of the legal profession from any source. The identity of the referring third-party shall be held in confidence by WVLAP unless the third-party consents to disclosure.

(c) Disciplinary Authority Referrals — WVLAP shall receive referrals from the West Virginia Supreme Court, the Lawyer Disciplinary Board, the Office of Disciplinary Counsel, or the Board of Law Examiners (individually referred to hereafter as a “referring authority”) of any lawyer whom the referring authority determines or believes should be contacted by WVLAP.

(d) In the event an impaired lawyer resists all efforts of assistance by WVLAP, the executive director or the Board may notify the initial referral source of the lawyer’s resistance for the sole purpose of allowing the referral source to pursue other recourse or resources. Moreover, the executive director may refer an impaired lawyer who resists all efforts of assistance by WVLAP to the Office of Disciplinary Counsel for an investigation, but such referral shall only be made with the approval of the Board.

Rule 7. Confidentiality

(a) Except as required by law, or to prevent the commission of a crime, or to prevent a person from committing serious harm to self or others, all information provided to or gathered by WVLAP, and actions taken by WVLAP, shall be privileged and held in strictest confidence and shall not be disclosed or required to be disclosed to any person or entity outside of WVLAP, unless such disclosure is authorized by the lawyer to whom it relates or as provided in Rule 6.

(b) The executive director, board members, employees, and agents, including volunteers recruited and covered under Rule 4, shall be deemed to be agents of WVLAP for purposes of the privilege and confidentiality provisions of this Rule.

Rule 8. Privilege and Immunity.

Except as otherwise provided in these rules all information provided with respect to any referral, investigation, monitoring or follow-up under these rules shall be privileged. The executive director, board members, employees, and agents, including volunteers acting on behalf of WVLAP under Rule 4, shall be absolutely immune from civil suit in the same manner as members of the judiciary in this state for any conduct undertaken on behalf of the WVLAP.

Rule 9. Costs.

Payment for all services provided under these Rules shall be the responsibility of the lawyer receiving such services and WVLAP shall not be liable for the costs of any services provided under these Rules; provided, however, that WVLAP shall have discretion to financially or otherwise assist lawyers, on a case by case basis, to obtain services anticipated under these Rules.

Rule 10. Miscellaneous.

(a) At any time it deems reasonable and feasible, and without the necessity of amending these rules, the Board of Directors may, through its by-laws, expand the assistance contemplated herein to encompass law students or others in the legal profession.

(b) Any diversion or other program which requires involvement of WVLAP in rehabilitative efforts on the part of the lawyer that is a result of an agreement with the Office of Disciplinary Counsel or otherwise imposed by order of the Supreme Court of Appeals, shall govern the extent and scope of confidentiality which may be asserted by the lawyer. To the extent such agreement and/or order may require WVLAP to violate a confidentiality protection granted under these rules, the order or agreement shall control and any disclosure made pursuant thereto shall not be deemed a breach of confidentiality otherwise imposed by these rules.

(c) At any time it deems reasonable and feasible, and without the necessity of amending these Rules, the WVLAP and the Office of Disciplinary Counsel may, through written agreement between them, establish a program of diversion from discipline and, subsequent entry into rehabilitation for those lawyers deemed candidates for such a diversion program.

(d) It is hereby acknowledged that an impaired lawyer’s completion of rehabilitation in conjunction with WVLAP may be considered as a mitigating factor with respect to any disciplinary action arising out of the impairment for which rehabilitation was completed.”

 

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