In Re: Rules Governing Professional Conduct

98-1369

IN RE: ESTABLISHMENT of the ARKANSAS LAWYER ASSISTANCE PROGRAM; ADOPTION of RULE 8.3(d) and (e) of the MODEL RULES of PROFESSIONAL CONDUCT and CANON 3D (4) and (5) of the ARKANSAS CODE of JUDICIAL CONDUCT

98-1369 ___ S.W.3d ___

Supreme Court of Arkansas

Delivered December 7, 2000

Per Curiam. The Arkansas Bar Association and the Pulaski County Bar Association petitioned this Court requesting that we establish a program to assist members of the legal profession in this State suffering from physical or mental disabilities. On July 7, 2000, we proposed the creation of the Arkansas Lawyer Assistance Program ("ALAP") and published for comment proposed rules for its operation. The comment period ended on October 1, 2000. We thank all those who took the time to review the proposal.

Upon consideration of the comments submitted to the Court and after further review, we hereby establish ALAP and adopt the rules for its operation as set out below. Additionally, we amend Rule 8.3 of the Model Rules of Professional Conduct by adding new subsections (d) and (e), and Canon 3 of the Arkansas Code of Judicial Conduct by adding new subsections (D)(4) and (D)(5). These new provisions appear at the end of this order.

ALAP, its Rules, and the amendments to the Model Rules and the Code of Judicial Conduct shall be effective January 1, 2001.

RULES OF THE ARKANSAS

LAWYER ASSISTANCE PROGRAM (ALAP)

RULE 1. SCOPE OF PROGRAM

A. Establishment. There is hereby established a state-wide lawyer assistance program to be known as Arkansas Lawyer Assistance Program (or "ALAP") which shall provide immediate and continuing help to lawyers and judges (hereinafter "members of the legal profession") who suffer from physical or mental disabilities that result from disease, substance abuse, disorder, trauma, or age and that impair their ability to practice or serve.

B. Purpose. ALAP has three purposes:

(1) to protect the interests of clients, litigants, and the general public from harm caused by impaired lawyers or judges;

(2) to assist impaired members of the legal profession to begin and continue recovery; and

(3) to educate the bench and bar to the causes of and remedies for impairments affecting members of the legal profession.

C. Funding and Administration.

(1) The Supreme Court of Arkansas shall collect annually and remit to ALAP a fifteen dollar ($15.00) annual fee from every attorney for the purpose of funding this program.

(2) Funding for ALAP may also include gifts or bequests from any source and earnings on investments of the ALAP fund.

Rule 2. ALAP COMMITTEE

A. Members. The Arkansas Supreme Court shall appoint committee members to administer the ALAP. Officers of the committee shall consist of a chair, vice chair, and secretary/treasurer. The chair shall be appointed by theSupreme Court. Each of the other officers shall be elected by the members of the committee annually.

B. Composition. The committee shall consist of nine (9) members, chosen on the basis of geography and diversity and shall include three (3) citizens who are not members of the legal profession. The members shall have diverse experience, knowledge and shall have demonstrated competence in the problems of addiction and other common difficulties that impair members of the legal profession.

C. Terms. Each appointment shall be for a term of six years, unless otherwise designated by the Supreme Court. Members may not be appointed to successive six-year terms. Terms shall be staggered. Vacancies occurring from causes other than expiration of term of office will be filled by the Supreme Court as they occur, and the person so appointed shall serve the remainder of the term of his or her predecessor. Members shall continue to serve beyond their designated term until such time as their successor is qualified and appointed by the Court.

D. Duties of the Committee. The committee shall have the following powers and duties:

(1) To establish ALAP policy and procedures consistent with the purposes of this program. Such policies and procedures shall be established after reasonable notice to the Arkansas bench and bar and opportunity for comment.

(2) To operate the program to achieve its purposes.

(3) To assure the duties listed under Rule 3 are carried out in the absence of a director of the program.

(4) To establish and administer a revolving loan fund as provided under Rule 9.

(5) To make reports to the Arkansas Supreme Court annually or as otherwise required.

E. Meetings. The committee shall meet quarterly, upon call of the chair or upon the request of five (5) or more members.

Rule 3. DIRECTOR OF THE PROGRAM

A. Appointment/Hire. The committee shall hire the ALAP director with the consent of the Supreme Court, and the director shall serve at the pleasure of the Court. The committee shall oversee and supervise the work of the director.

B. Qualifications. The director shall have sufficient experience and training to enable the director to identify and assist impaired members of the legal profession and to work well with the volunteers.

C. Duties and Responsibility. The director shall:

(1) Provide initial response to help-line calls.

(2) Help lawyers, judges, law firms, courts, and others to identify and intervene with impaired members of the legal profession.

(3) Help members of the legal profession and their families to secure expert counseling and treatment for chemical dependency and otherillnesses, maintaining current information on available treatment services, both those that are available without charge as well as paid services.

(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) Establish and oversee monitoring services with respect to recovery of members of the legal profession for whom monitoring is appropriate under Rules 5 (E) or 7.

(6) Plan and deliver educational programs for the legal community with respect to all sources of potential impairment as well as treatment and preventative measures.

(7) Provide information about ALAP services to members of the legal profession and their families.

(8) Recruit, select, train, and coordinate the activities of volunteers.

(9) Investigate other potential sources of income pursuant to

Rule 1 (C) (2).

Rule 4. VOLUNTEERS

The program shall enlist volunteers working in conjunction with the Arkansas Bar Association, whose responsibility may include:

(A) assisting in interventions planned by ALAP;

(B) acting as twelve-step program sponsors;

(C) acting as a contact between ALAP and courts, bar organizations, and local committees;

(D) providing compliance monitoring when appropriate; or

(E) performing any other function deemed appropriate and necessary by the committee to fulfill its purposes.

Rule 5. SERVICES

ALAP shall provide the following services:

(A) immediate and continuing assistance to members of the legal profession who suffer from physical or mental disabilities that result from disease, substance abuse disorder, trauma, or age and that impair their ability to practice;

(B) planning and presentation of educational programs to increase the awareness and understanding of members of the legal profession to recognize problems in themselves and in their colleagues; to identify the problems correctly; to reduce stigma; and, to convey an understanding of appropriate ways of interacting with affected individuals;

(C) investigation, planning, and participation in interventions with members of the legal profession in need of assistance;

(D) aftercare services upon request, by order, or under contract that may include the following: assistance in structuring aftercare and discharge planning; assistance for entry into appropriate aftercare and professional peer support meetings; and assistance in obtaining a primary care physical or local peer counselor; and

(E) monitoring services under Rule 7 or under contract that may include the following: alcohol and/or drug screening programs; tracking aftercare, peer support and twelve-step meeting attendance; providing documentation of compliance; and providing such reports concerning compliance by those participating in a monitoring program as may be required by the terms of that program.

Rule 6. REFERRALS

A. Self-referral. Any member of the legal profession may seek assistance from ALAP.

B. Other Referrals. ALAP shall receive referrals concerning any member of the legal profession from family members, colleagues, friends, law firms, or any other source.

Rule 7. REFERRALS FROM THE PROFESSIONAL CONDUCT COMMITTEE, JUDICIAL DISCIPLINE AND DISABILITY COMMISSION, OR OTHER DISCIPLINARY AGENCIES

A. Referrals. ALAP may accept referral of lawyers or judges under investigational, provisional, or probational status with the Arkansas Professional Conduct Committee, Arkansas Judicial Discipline and Disability Commission, or any disciplinary agency with disciplinary authority.

B. Progress Reports. When ALAP accepts a referral under Rule 7 (A), ALAP shall provide progress reports or reports of non-compliance. Notwithstanding Rule 10, these reports may be used as evidence in any proceeding or appeal relating to such referral from the Arkansas Professional Conduct Committee, the Arkansas Judicial Discipline and Disability Commission, or adisciplinary agency with disciplinary authority.

Rule 8. COOPERATION WITH LOCAL BAR PROGRAMS

ALAP shall coordinate its activities with local impaired lawyer programs.

Rule 9. REVOLVING LOAN FUND

From the funds received under Rule 1 (C) (2), ALAP may establish a revolving loan fund. Such fund shall be made available to impaired lawyers and judges under rules and regulations established by the committee, as a low interest loan for the purpose of defraying the cost of treatment.

Rule 10. CONFIDENTIALITY

Information and actions taken by ALAP shall be held in the strictest confidence and shall not be disclosed or required to be disclosed to any person or entity outside of ALAP, unless such disclosure is authorized by the member of the legal profession to whom it relates or as provided in Rule7 (B) hereof, Arkansas Model Rules of Professional Conduct, Rule 8.3 (d) and (e), or Arkansas Code of Judicial Conduct, Canon 3D (4) and (5). Except as provided in Rule 7 (B), Model Rule 8.3 (d) and (e) or Canon 3D (4) and (5), such information and actions shall be excluded as evidence in any complaint, investigation, or proceeding before the Arkansas Professional Conduct Committee, Arkansas Judicial Discipline and Disability Commission, or disciplinary agency with jurisdiction.

Committee members, employees, and agents including volunteers recruited under Rule 4 are relieved of the duty of disclosure of information to authorities as imposed by Rule 8.3 of the Arkansas Model Rules of Professional Conduct and Canon 3D of the Arkansas Code of Judicial Conduct except as provided for in Model Rule 8.3 (d) and (e) and Canon 3D (4) and (5).

Rule 11. FACILITY

The ALAP office shall be so located as to be consistent with the privacy and confidentiality requirements of this rule.

Rule 12. PROGRAM REVIEW

ALAP shall be reviewed annually by the Arkansas Supreme Court and shall cease to exist on December 31, 2006 unless the Arkansas Supreme Court provides otherwise.

MODEL RULES OF PROFESSIONAL CONDUCT

Rule 8.3. Reporting professional misconduct

(a) A lawyer having knowledge 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 in other respects, shall inform the appropriate professional authority.

(b) A lawyer having knowledge that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority.

(c) This rule does not require disclosure of information otherwise protected by Rule 1.6.

(d) This rule shall not apply to a member of the Lawyer Assistance Committee ("the Committee") of the Arkansas Lawyer Assistance Program ("ALAP") or a volunteer serving pursuant to Rule 4 of the Rules of ALAP regarding information received in one's capacity as a Committee member or volunteer, acting in good faith, unless it appears to said member or volunteer that the attorney in question, after entry into the ALAP, is failing to desist from said violation, or is failing to cooperate with a program of assistance to which said attorney has agreed, or is engaged in the sale of a controlled substance or theft of property constituting a felony under Arkansas law, or the equivalent thereof if the offense is not within the State's jurisdiction.

(e) Except as provided by the preceding subsection (d), and Rules 7 (B) and 10 of the Rules of ALAP, no information received, gathered, or maintained by the Committee, its members or volunteers, or by an employee of the ALAP in connection with the work of the Committee may be disclosed to any person nor be subject to discovery or subpoena in any administrative or judicial proceeding, except upon the express written release of the subjectattorney. However, the Committee may refer any attorney to a professional assistance entity, and may, in good faith, communicate information to the entity in connection with the referral. If information obtained by a member of the Committee, a volunteer, or an employee of the ALAP gives rise to reasonable suspicion of a direct threat to the health or safety of the subject attorney or other person, then the obligation of confidentiality set forth in this subsection (e) shall not apply, and the Committee member, volunteer, or ALAP employee may make such communications as are necessary for the purpose of avoiding or preventing said threat.

ARKANSAS CODE OF JUDICIAL CONDUCT

CANON 3.

* * *

D. Disciplinary Responsibilities.

(1) A judge who receives information indicating a substantial likelihood that another judge has committed a violation of this Code should take appropriate action. A judge having knowledge that another judge has committed a violation of this Code that raises a substantial question as to the other judge's fitness for office shall either communicate directly with respect to the violationwith the judge who has committed the violation or report the violation to the Judicial Discipline and Disability Commission.

(2) A judge who receives information indicating a substantial likelihood that a lawyer has committed a violation of the Rules of Professional Conduct should take appropriate action. A judge having knowledge that a 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 either communicate directly with respect to the violation with the lawyer who has committed the violation or report the violation to the Arkansas Supreme Court Committee on Professional Responsibility.

(3) Acts of a judge, in the discharge of disciplinary responsibilities, required or permitted by Sections 3D(1) and 3D(2) are part of a judge's judicial duties and shall be absolutely privileged, and no civil actions predicated thereon may be instituted against the judge.

(4) Sections 3D(1) and 3D (2) shall not apply to a member of the Lawyer Assistance Committee ("the Committee") of the Arkansas Lawyer Assistance Program ("ALAP") or a volunteer serving pursuant to Rule 4 of the Rules of ALAP regarding information received inone's capacity as a Committee member or volunteer, acting in good faith, unless it appears to said member or volunteer that the lawyer or judge in question, after entry into the ALAP, is failing to desist from said violation, or is failing to cooperate with a program of assistance to which said lawyer or judge has agreed, or is engaged in the sale of a controlled substance or theft of property constituting a felony under Arkansas law, or the equivalent thereof if the offense is not within the State's jurisdiction.

(5) Except as provided by the preceding subsection 3D (4), and Rules 7 (B) and 10 of the Rules of ALAP, no information received, gathered, or maintained by the Committee, its members or volunteers, or by an employee of the ALAP in connection with the work of the Committee may be disclosed to any person nor be subject to discovery or subpoena in any administrative or judicial proceeding, except upon the express written release of the subject lawyer or judge. However, the Committee may refer any lawyer or judge to a professional assistance entity, and may, in good faith, communicate information to the entity in connection with the referral. If information obtained by a member of the Committee, a volunteer, or an employee of the ALAP gives rise to reasonablesuspicion of a direct threat to the health or safety of the subject lawyer, judge or other person, then the obligation of confidentiality set forth in this subsection 3D(5) shall not apply, and the Committee member, volunteer, or ALAP employee may make such communications as are necessary for the purpose of avoiding or preventing said threat.