Professional Guidelines

An agency of the Supreme Court of Virginia

The Virginia State Bar

Professional Guidelines

13-23 Board Proceedings Upon Impairment

  1. Suspension for Impairment. The Board shall have the power to issue an order of Suspension to a Respondent who has an Impairment. The term of such Suspension shall be indefinite, and, except as provided below, shall be terminated only upon determination by the Board that Respondent no longer has the Impairment. A Respondent who intends to rely upon evidence of an Impairment in mitigation of Misconduct shall, absent good cause excusing his or her failure to do so, provide notice not less than 14 days prior to the hearing to Bar Counsel and the District Committee or Board of his or her intention to do so. A finding of Impairment or transfer to the Disabled and Retired class of membership under Paragraph 13-23.K may be utilized by Bar Counsel to dismiss any pending Complaints or allegations of Misconduct on the basis of a finding of Impairment or a transfer to the Disabled and Retired class of membership militating against further proceedings, which circumstances of Impairment shall be set forth in the Dismissal.
  2. Burden of Proof. Whenever the existence of an Impairment is alleged in a Proceeding under this Rule or in mitigation of allegations of Misconduct, the burden of proving such an Impairment shall rest with the party asserting its existence. The issue of the existence of an Attorney’s Impairment may be raised by any person at any time, and if a District Committee or the Board, during the course of a hearing on allegations of Misconduct against a Respondent, believes that the Respondent may then have an Impairment, the District Committee or the Board may postpone the hearing and initiate an Impairment Proceeding under this Rule. In Proceedings to terminate a Suspension for Impairment, the burden of proving the termination of an Impairment shall be on the Respondent.
  3. Investigation. Upon receipt of notice or evidence that an Attorney has or may have an Impairment, Bar Counsel shall cause an Investigation to be made to determine whether there is reason to believe that the Respondent has the Impairment. As a part of the Investigation of whether an Impairment exists, and for good cause shown in the interest of public protection Bar Counsel may petition the Board to order the Respondent:
    1. To undergo a psychiatric, physical or other medical examination by qualified physicians or other health care provider selected by the Board; and
    2. To provide appropriate releases to health care providers authorizing the release of Respondent’s psychiatric, physical or other medical records to Bar Counsel and the Board for purposes of the Investigation and any subsequent Impairment proceedings. 
    Upon notice to the Respondent, the Board shall hold a hearing to determine whether any such examination or release is appropriate.
  4. Summary Suspension. Upon receipt of a notice from the Clerk of the Disciplinary System with supporting documentary evidence that an Attorney has been adjudicated by a court of competent jurisdiction to have an Impairment, or that an Attorney has been involuntarily admitted to a hospital (as defined in Va. Code §37.1-1) for treatment of any addiction, inebriety, insanity or mental illness, any member of the Board shall summarily issue on behalf of the Board an order of Suspension against the Respondent and cause the order to be served on such Respondent.
  5. Action by Board after a Hearing.
    1. If Bar Counsel determines that there is reason to believe that an Attorney has an Impairment, Bar Counsel shall file a petition with the Board, and the Board shall promptly hold a hearing to determine whether such Impairment exists. A copy of the petition shall be served on the Respondent. If the Board determines that an Impairment exists, it shall enter an order of Suspension.
    2. The Board shall hold a hearing upon petition of a Respondent who is subject to a Suspension for Impairment that alleges that the Impairment no longer exists. Evidence that the Respondent is no longer hospitalized shall not be conclusive to the Board’s determination of the Respondent’s ability to resume the practice of law.
  6. Procedure. Such hearing shall be conducted substantially in accordance with the procedures established in proceedings related to Misconduct, except that the public and witnesses, other than the Complainant and the Respondent, shall be excluded throughout an Impairment Proceeding when not testifying.
  7. Guardian Ad Litem. The notice of any hearing to determine whether the Respondent has an Impairment shall order Respondent to advise the Board whether Respondent has retained counsel for the hearing. Unless counsel for such Respondent enters an appearance with the Board within ten days of the date of the notice, the Board shall appoint a guardian ad litem to represent such Respondent at the hearing.
  8. Examination. Following a psychiatric, physical or other medical examination, written reports of the results of such examination, along with written reports from other qualified physicians or other health care providers who have examined Respondent, may be considered as evidence by the Board. Such reports shall be filed with the Clerk of the Disciplinary System.
  9. Termination of Suspension. In cases where a Suspension is based upon an adjudication of an Impairment by a court, upon receipt of documentary evidence of adjudication by a court of competent jurisdiction that the Respondent’s Impairment has terminated, the Board shall promptly enter an order terminating such Suspension.
  10. Enforcement. The Board shall have the power to sanction an Attorney for failure to comply with its orders and subpoenae issued in connection with an Impairment Proceeding. The sanction can include a summary Suspension in a case where it is determined that the public and/or the clients of the Attorney are in jeopardy; such action can be sua sponte or on motion by Bar Counsel, with appropriate notice to the Attorney and the Attorney’s counsel or guardian ad litem.
  11. Transfer of Membership Status. Bar Counsel may terminate and close an Impairment Proceeding if the Respondent transfers to the Disabled and Retired class of membership pursuant to Part 6, Section IV, Paragraph 3 of the Rules of Court and files a declaration with the Clerk of the Disciplinary System and the Virginia State Bar’s Membership Department that the Respondent will not seek transfer from the Disabled and Retired class of membership. The declaration shall be endorsed by the Respondent and the Respondent’s counsel or Guardian Ad Litem. Termination of the Impairment Proceeding shall not be considered a final order in an Impairment Proceeding under Paragraph 13-30. The Respondent’s transfer to the Disabled and Retired class of membership and filing of the declaration pursuant to this subparagraph may be utilized by Bar Counsel to dismiss any pending Complaints or allegations of Misconduct on the basis of transfer to the Disabled and Retired class of membership, militating against further proceedings, which shall be set forth in the Dismissal.

 

The amendments effective January 1, 2019, facilitate retirement for a lawyer suffering from a permanent impairment, such as an irreversible cognitive decline, by allowing retirement with dignity instead of having the lawyer’s license suspended on impairment grounds. With these amendments, the impaired lawyer could transfer to the Disabled and Retired class of membership.

The amendments effective March 19, 2010, revised Paragraph 13 dealing with the use of the phrase "Charge of Misconduct".

Updated: December 20, 2018