Order dated May 2, 2006, re: Rule 16 Substance Abuse Intervention

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Order dated May 2, 2006, re: Rule 16 Substance Abuse Intervention

SUPREME COURT OF MISSOURI
en banc
May 2, 2006

In re:
Repeal of Rule 16, entitled "Substance Abuse Intervention," consisting of subdivisions 16.01 to 16.10, inclusive, and in lieu thereof adoption of a new Rule 16, entitled "Substance Abuse Intervention," consisting of subdivisions 16.01 to 16.10, inclusive.
O R D E R
1. It is ordered that Rule 16, consisting of subdivisions 16.01 to 16.10, inclusive, be and the same is hereby repealed and a new Rule 16, consisting of subdivisions 16.01 to 16.10, inclusive, adopted in lieu thereof to read as follows:

RULE 16 SUBSTANCE ABUSE INTERVENTION

16.01 PURPOSE AND INTENT

(a) The intervention committee is established to encourage the identification of substance abuse in the legal profession so that:

(1) Through the assistance of committee members and its volunteers, lawyers or judges who may have a substance abuse or addiction problem are able to identify and address that problem through an appropriate course of treatment and thereby reduce the potential for engaging in behavior that could result in disciplinary complaints or grievances being filed against that lawyer or judge; and

(2) When referrals are made by the office of chief disciplinary counsel, investigations and interventions can be conducted and rehabilitation programs may be imposed to reduce potential harm or injury to the public and to the practice of law in Missouri.

(b) Substance abuse causes or contributes to incompetence and malpractice of the law by lawyers and judges, which damages the public and the legal profession. Substance abusers neglect clients, violate rules of professional and judicial conduct and commit crimes. In order to maintain public confidence in the legal profession and the disciplinary process, the committee shall strive to address substance abuse or addiction problems among lawyers or judges before said abuse or addiction results in complaints or grievances against those lawyers or judges and, when complaints or grievances have been filed, to assist in promptly resolving those complaints or grievances, thereby serving the public and the profession.

(c) Persons who have themselves suffered as substance abusers, but who have arrested the disease and established a recovery mode in their own cases, are particularly well-suited to know and understand the problems of substance abusers. Accordingly, the committee can best accomplish its purposes by organizing and utilizing the manpower and talent of lawyers and judges in the state of Missouri who are recovering substance abusers.

16.02 DEFINITIONS

As used in this Rule 16, unless the context requires a different meaning, the following terms mean:

(1) “Commission,” the commission on retirement, removal and discipline created by article V of the constitution and governed by Rule 12;

(2) “Committee,” the intervention committee established by this Rule 16;

(3) “Director,” the director of the Missouri lawyers assistance program;

(4) “Disciplinary authority,” the chief disciplinary counsel, advisory committee, regional disciplinary committees, the commission, the board of law examiners, or this Court;

(5) “Disciplinary process,” the procedure for investigating and adjudicating conduct and discipline under rules of this Court;

(6) “Intervention,” the process of interrupting substance abuse by utilizing information, confrontation, counseling and motivation techniques to facilitate entry into diagnosis, treatment, and rehabilitation;

(7) “Missouri lawyer’s assistance committee,” a committee of The Missouri Bar comprised of members interested in providing resources and assistance to lawyers and their families in the identification and treatment of substance abuse or addiction and educating the public and the bench and bar regarding substance abuse and addiction;

(8) “Missouri lawyers assistance program” or "program," a program established by The Missouri Bar and administered by a director retained by The Missouri Bar that provides services to members of The Missouri Bar, law students, and their families in the areas of substance abuse and other mental health conditions;

(9) “Monitor,” a volunteer lawyer appointed by the committee to monitor a substance abuser’s compliance with conditions set forth by a disciplinary authority and who shall report to the disciplinary authority;

(10) “Rehabilitation program,” a course of treatment and rehabilitation for recovery from substance abuse;

(11) “Substance abuse,” the repeated overuse of alcohol, drugs and other chemically addictive substances to the degree of addiction or substantial impairment of a person’s capability to practice law, to carry out judicial duties, or otherwise carry out reasonable business and social activities;

(12) “Substance abuse mentor,” a volunteer lawyer who may act as an additional resource for the substance abuser and who may provide additional support to the substance abuser during the rehabilitation process; and

(13) “Substance abuser,” a person exhibiting evidence of active continuing substance abuse.

16.03 THE INTERVENTION COMMITTEE, MEMBERSHIP AND TENURE

There is hereby established a committee known as “The Intervention Committee,” which shall be composed of nine members of The Missouri Bar, four members to be appointed by the Executive Council of the Judicial Conference and five members to be appointed by the Board of Governors of The Missouri Bar. Each member shall serve a term of four years and may be reappointed for additional terms of four years. Each member shall serve until a successor is appointed and qualified.

The committee shall designate one of the members to serve as chair to serve as the presiding and chief administrative officer. The chair shall assign investigations and interventions and order the maintenance of records in accordance with this Rule 16. The committee may also designate other members to carry out specific functions or duties under this Rule 16. In addition, the committee may appoint a non-committee lawyer as a “committee secretary” to participate in committee meetings and assist in assigned administrative, clerical, and record keeping functions.

16.04 AUTHORITY AND DUTIES

(a) In General. The committee shall have the authority to:

(1) Investigate substance abuse in the legal profession and among the judiciary for the purpose of identification of substance abuse;

(2) Conduct interventions involving members of The Missouri Bar and judiciary; and

(3) Recommend and monitor rehabilitation programs for recovery.

The committee shall carry out such duties at the request of a disciplinary authority or upon referral or request of a third-party. If the referral is made by a disciplinary authority, the committee shall make a report and recommendation to the disciplinary authority with respect to the nature and extent of the substance abuse, whether the lawyer acknowledges any substance abuse, the facts relative to any treatment efforts and attempts at rehabilitation, and the impact on the lawyer’s ability to practice.

(b) Disciplinary Referrals. If in the course of investigative proceedings by a disciplinary authority it appears that substance abuse may be a direct factor or has a causal connection in a judge’s conduct of the judicial function or a lawyer’s malpractice or other dereliction that forms the basis for the disciplinary action against a judge or lawyer, then the matter may be referred to the committee. The committee shall independently verify whether substance abuse is present and, if present, whether there is a causal connection between such substance abuse and the derelictions being charged against the substance abuser. The committee shall make a report and recommendation to the disciplinary authority as provided in Rule 16.04(a).

(c) Non-disciplinary Referrals. The committee may also accept referrals from sources other than a disciplinary authority for the purpose of identification of substance abuse and recommend and monitor rehabilitation programs in the legal profession. In all such cases, it shall be the primary function and goal of the committee to serve as an advocate for the health of the persons referred to the committee and to quickly identify non-substance abuse cases. Any two committee members, or a committee member and a volunteer appointed by the committee, can undertake an investigation or intervention based upon due cause from third-party referral sources; in which case, no written notification will be given to the chief disciplinary counsel. Any and all information obtained as a result of a third-party referral shall be strictly confidential. Committee members and volunteers acting in their capacities as set forth in this Rule 16.04(c) are relieved from their obligation to report misconduct to the disciplinary authority.

(d) The committee shall endeavor to maintain as confidential the identity of the referring party and the substance abuser; but if a referral is made to the committee by the disciplinary authority, the committee shall have the duty of pre-warning the substance abuser that no confidence can exist regarding any criminal or ethical violation and that the committee has a duty to disclose any such information to the disciplinary authority.

(e) Upon request of a disciplinary authority or the Court, the committee may appoint a lawyer to monitor the substance abuser’s compliance with certain conditions set forth by the disciplinary authority as part of a diversion plan or as conditions of probation set forth by this Court. The committee, through the director, shall maintain a list of lawyers trained in such monitoring activities who are willing to assume such a role. The monitor shall report to the disciplinary authority, and the communications between the monitor and the monitored lawyer shall not be confidential.

(f) The committee may delegate certain of its duties to the director. Such duties may include receiving requests for substance abuse services directly from the substance abuser or upon a third-party referral. If the director receives a request for such services from any party other than a disciplinary authority, such communications shall be confidential. Such confidentiality shall extend to any volunteer lawyers who may assist the director pursuant to the request. Any volunteer lawyers providing assistance under this Rule 16.04(f) shall be relieved from their obligation to report professional misconduct.

(g) The committee, either directly or through the director, may maintain a list of volunteer lawyers to act as substance abuse mentors as an additional resource for the substance abuser and to provide additional support during the rehabilitation process. All communications between the volunteer lawyer substance abuse mentor and the substance abuser shall be confidential unless the substance abuser was referred to the committee by a disciplinary authority.

16.05 INVESTIGATIVE PROCESS

(a) All investigations of substance abuse carried out by the committee shall be conducted by investigators knowledgeable in the recognition and investigation of signs of substance abuse.

(b) The committee shall maintain active liaison with the Missouri lawyer’s assistance committee and the program and shall assign and coordinate each investigation of a substance abuser through a team of two investigators. The investigators shall conduct an investigation into substance abuse and report their findings to the committee. If the investigative report is indicative of substance abuse and a causal connection to judge or lawyer dereliction, the committee shall formulate a plan for intervention and rehabilitation of the substance abuser, together with preliminary findings or recommendations as to a program of recovery.

16.06 INTERVENTION PROCESS

(a) The committee shall be primarily responsible for ascertaining the training and experience of all committee and Missouri lawyer's assistance committee lawyers and others trained in intervention techniques and for setting up training seminars and maintaining a volunteer staff of such intervenors.

(b) In each case in which substance abuse is evident, the committee shall assign the case to a team of at least two intervenors skilled in the current state of the art of intervention techniques. The intervention team shall be responsible for the interviewing and ancillary research necessary to plan and carry out an intervention with the substance abuser with the object of establishing a rehabilitation program.

(c) The intervention teams shall maintain records and findings of the entire intervention process and shall submit this information with its summary report to the committee for appropriate action, if any.

16.07 IMMUNITY FROM LIABILITY

Any person who provides information to the committee or is involved in the investigation, intervention, or rehabilitation process is not subject to any civil liability or criminal action or proceeding as a result thereof. Any person intentionally providing false information shall not be immune from any liability, civil or criminal.

16.08 REHABILITATION PROCESS - MONITORING

Members of the committee may act as a monitor on contracts that provide for a program of recovery for a lawyer who has an addiction. Said contract may be entered into by the lawyer at the behest of the office of chief disciplinary counsel, the board of law examiners, the commission, or at the initiation of the lawyer.

16.09 RULES AND REGULATIONS

The committee may make rules and regulations consistent with the provisions of this Rule 16 for the administration of this Rule 16.

16.10 RECORDS

No member of the committee, no members of the committee’s staff or investigative personnel, no witness and no other person shall disclose the existence or contents of any committee investigation or proceedings or any records accumulated by the committee. Records maintained by the committee shall be destroyed two years after the substance abuser completes an approved treatment program. Except as herein provided, all members of the committee and the committee’s records shall be subject to the confidentiality provisions of Rule 5 or Rule 12, as the case may be.

2. It is ordered that notice of this order be published in the Journal of The Missouri Bar.
3. It is ordered that this order be published in the South Western Reporter.

Day - to - Day

______________________________
MICHAEL A. WOLFF
Chief Justice