Inquiry:
A partner in a law firm believes that another member of the firm has become mentally unstable due to illness or age, and is concerned that the other lawyer may not be able to adequately represent his clients. What are the partner's obligations under these circumstances? What if any disclosures need to be made to the disabled lawyer's clients?

Response:
There were no ethics opinions located on the subject of what a lawyer should do when he suspects that another lawyer in his firm may have a disability due to illness, age or drug addiction that may affect the lawyer's ability to practice law. However, the ABA Model Rules of Professional Conduct (MRPC), the ABA Model Rules For Lawyer Disciplinary Enforcement (MRLDE), state and local bar association ethics opinions, and the practices of local Lawyer Assistance Programs provide information related to different aspects of this problem.

MRPC 1.16(a)(2) (Declining or Terminating Representation) states:

[A] lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:

(2) the lawyers' physical or mental condition materially impairs the lawyer's ability to represent the client.

MRPC 5.1(c)(2) (Responsibilities of a Partner or Supervisory Lawyer) states:

A lawyer shall be responsible for another lawyer's violation of the Rules of Professional Conduct if:

(2) the lawyer is a partner in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at the time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

The Comment corresponding to Rule 5.1(c) provides some additional guidance. It states:

Partners of a private firm have at least indirect responsibility for all work being done by the firm, while a partner in charge of a particular matter ordinarily has direct authority over other firm lawyers engaged in the matter. Appropriate remedial action by a partner would depend on the immediacy of the partner's involvement and the seriousness of the misconduct.

Lawyers have been disciplined for the failure to take remedial action when they are on notice that another lawyer in the firm is engaged in misconduct. See, e.g., Krehling v. Baron 900 F.Supp. 1574 (M.D. Fla 1995). (A lawyer who was informed that another lawyer in the firm was committing fraud involving client's interests, and who failed to take steps to prevent that lawyer from committing further fraud, was held personally liable.), and In Re Marshall, 394 N.W. 2d 190 (Minn. 1986) (Failure to take reasonable remedial action to avoid or mitigate consequences of law partner's misconduct is grounds for discipline.). ¹

Rule 23(C) of the MRLDE provides a procedure whereby the court can conduct a hearing on whether a lawyer's physical or mental condition adversely affects the lawyer's ability to practice law. If, as a result of such a hearing, the court orders the lawyer to be transferred to disability inactive status, Rule 27 mandates that the lawyer give notice of such order to clients in pending matters within ten days of the order. Rule 28 provides for the appointment of a lawyer "to inventory the files of the respondent, and to take such action as seems indicated to protect the interests of the respondent and his or her clients"when the lawyer has no partner or other responsible party capable of handling the lawyer's affairs. The MRLDE does not specify any action that must be taken by a partner or associate of the lawyer.

Services offered through a Lawyer Assistance Program (LAP) may help a lawyer faced with this type of problem. One of the stated purposes of a LAP is "to protect (the interests of ) clients from harm caused by impaired lawyers."² Under Model Rule 8.3(c) (Reporting Professional Misconduct), confidential information regarding possible ethics violations gained by lawyers or judges while working on behalf of a LAP need not be reported.

State and local bar association ethics opinions that discuss tangentially related issues include Association of the Bar of the City of New York Opinion 1995-5 (1995). This opinion addresses a partner's duty to report a former partner's misconduct that was related to the former partner's disability.

A lawyer who has knowledge, or believes clearly that the lawyer's former partner may be unfit to practice due to depression and having engaged in a pattern of neglect, failure to account for expenses of the firm when forwarding settlement proceeds to a client, and having deposited firm funds into the partner's own account must report the misconduct to the disciplinary authorities.3

Mississippi State Bar Opinion 227 (1995) states that a lawyer may not continue to represent a client when the lawyer's mental state will impair the representation. Illinois State Bar Opinion 92-12 (1993) addresses this issue from the perspective of a lawyer who is consulted by one of his clients, a doctor, who is concerned that one of his patients, a lawyer, is too senile to continue practicing law.

The lawyer may, however, advise the doctor to suggest to the patient and his family, with whom the doctor has already discussed the problem that a guardian be appointed for the lawyer. The lawyer may also advise the doctor that a family member could communicate the concerns to a disciplinary authority empowered to initiate an inquiry resulting in the incapacitated lawyer's transfer to inactive status.4

There are also state bar opinions issued on the topic of whether a lawyer has an obligation to inform his client that the client's previous lawyer had committed malpractice. The reasoning in these opinions may have some applicability to situations where a lawyer believes that his partner may be incapable of handling client matters. See, e.g., Illinois State Bar Association Opinion 88-11 and Rhode Island Supreme Court Opinion 94-70 (1994). Both of these opinions state that the successor lawyer has a duty to inform his client of the prior lawyer's malpractice.

The Illinois opinion cites DR 7-101(a)(3), which states that a lawyer shall not prejudice or damage his client during the course of the professional relationship. The Rhode Island opinion, which cites its state's rules regarding communication and lawyer as advisor, stands for the proposition that "[a] lawyer who discovers in the preliminary stages of litigation of a matter that the attorney who referred the matter to the lawyer made 'fatal strategic and tactical errors' that cannot be corrected should so inform the client." ⁵

Inquiry:
A lawyer was formerly in-house counsel for an insurance company. The lawyer is now in private practice concentrating in personal injury matters. One of the lawyer's clients has a claim against one of the insurance company's insureds. Can the lawyer take the case?

Response:
Central to the resolution of this question under Model Rule 1.9 (Conflict of Interest: Former Clients) is the determination as to whether the subject matter of the current representation is substantially related to any of the matters the lawyer handled while employed by the insurance company The second paragraph of the Comment to Rule 1.9 states:

The scope of a "matter" for purposes of this Rule may depend on the facts of a particular situation or transaction. The lawyer's involvement in a matter can also be a question of degree. When a lawyer has been directly involved in a specific transaction, subsequent representation of other clients with materially adverse interests clearly is prohibited. On the other hand, a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a wholly distinct problem of that type even though the subsequent representation involves a position adverse to the prior client . . . . The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.

There are some state bar opinions that address this issue. Indiana State Bar Association Opinion No. 3 of 1991 states that a former in-house counsel who managed employment discrimination suits may represent a new client in an employment discrimination suit against the former employer, but that the lawyer is barred from using information relating to the former representation to the disadvantage of the former client under Rule 1.9(c).

The opinion also considers whether the lawyer's familiarity with company officers' personalities and negotiating styles should be considered to be a client confidence that may not be used to the disadvantage of the former client under Rule 1.9(c):

It seems personalities and negotiating styles as posited in this situation are not the kinds of information that a client has a "reasonable belief that it was submitting as confidential information." A personality or a negotiating style seem particularly within the exception as "generally known" because of their lack of substance and their easily discoverable nature. Many attorneys may know the personalities and negotiating styles of the company. They would not have had to gain this information out of a privileged relationship with the client. (citation omitted)

The opinion concludes:

[S]ecrets or confidences that were gained while in the employ of the former client still may not be revealed to the disadvantage of the former client. Furthermore, if the attorney is knowledgeable of such secrets or confidences, he must then consider whether he is still able to vigorously and competently represent the new client while preserving any of his former client confidences. An additional consideration is whether the attorney participated in or rendered advice in connection with the preparation or implementation of any policies or procedures for the prior employer/client which may be implicated in the issues affecting the new client. If so, this new representation may not be a "wholly distinct problem." (citations omitted)

ABA Formal Opinion 97-409 (Conflicts of Interest: Successive Government and Private Employment) (1997) touches on this issue in its discussion of Rule 1.9(c):

The issue of what constitutes "information relating to the representation" of a government client is beyond the scope of this opinion. We note, however, that a former government lawyer will almost always have general knowledge of policies and practices of her former agency, gained through employment by or representation of that agency.

Such general knowledge would ordinarily not be considered disqualifying under Rule 1.9(c). Indeed, most lawyers who have represented organizational clients will inevitably have general information about the inner workings of the client, but we do not suppose such information is necessarily disqualifying under Rule 1.9(c). (emphasis added)

See also Rhode Island Supreme Court Opinion 93-87 (1993) (A lawyer who previously represented an institution in various matters may subsequently represent a client in a matter against the institution as the matter is unrelated to the previous subject matters; however, the lawyer may not use information obtained during the prior representation to the former client's disadvantage.)6 and State Bar of Michigan Opinion RI-192 (1994) (A lawyer who represented a small company in a discrimination case based on religion and marital status brought by an employee may not now represent another employee of the company in a discrimination claim based on gender unless the discrete allegations and/or basic questions underlying the claims are not related. This is a fact-based question . . . and doubts should be resolved in favor of declining the representation. If confidential information from the first representation would bear on the present matter then the lawyer should decline the case and again, doubts should be resolved in favor of declining.).7

Endnotes

1. ABA Annotated Model Rules of Professional Conduct, Third Edition (1996) at 424.

2. ABA Model Lawyer Assistance Program adopted by the House of Delegates in August, 1995.

3. ABA/BNA Lawyers' Manual on Professional Conduct at 1001:6404.

4. ABA/BNA Lawyers' Manual on Professional Conduct at 1001:3011.

5. ABA/BNA Lawyers' Manual on Professional Conduct at 1001:7837.

6. ABA/BNA Lawyers' Manual on Professional Conduct at 1001:7827.

7. ABA/BNA Lawyers' Manual on Professional Conduct at 1001:4772.

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