When a lawyer becomes mentally impaired

A partner in a law firm believes that another member of his firm has become mentally impaired due to illness, age or substance abuse and is concerned that the lawyer may not be able to provide competent and diligent representation to his clients.

• What are a partner's or supervisory lawyer's obligations with respect to an impaired lawyer?
• What if any disclosures need to be made to the impaired lawyer's clients?
• Does a lawyer have a duty to report a rule violation by an impaired lawyer?
• What are a lawyer's obligations when the impaired lawyer is not a member of the lawyer's firm?

I. ABA Ethics Opinions

Two recent ABA ethics opinions, 03-429 [PDF] Obligations with Respect to Mentally Impaired Lawyer in the Firm (2003) and 03-431 [PDF] Lawyer's Duty to Report Rule Violations by Another Lawyer Who may Suffer from Disability or Impairment (2003) address some of the issues implicated in the above scenario.

Formal Opinion 03-429 addressed these issues in the context of a lawyer's obligations where the impaired lawyer is a member of the lawyer's firm. The headnote of this opinion states:

If a lawyer's mental impairment is known to partners in a law firm or a lawyer having direct supervisory authority over the impaired lawyer, steps must be taken that are designed to give reasonable assurance that such impairment will not result in breaches of the Model Rules. If the mental impairment of a lawyer has resulted in a violation of the Model Rules, an obligation may exist to report the violation to the appropriate professional authority. If the firm removes the impaired lawyer in a matter, it may have an obligation to discuss with the client the circumstances surrounding the change of responsibility. If the impaired lawyer resigns or is removed from the firm, the firm may have disclosure obligations to clients who are considering whether to continue to use the firm or shift their relationship to the departed lawyer, but must be careful to limit any statements made to ones for which there is a factual foundation. The obligation to report a violation of the Model Rules by an impaired lawyer is not eliminated by departure of the impaired lawyer.

Opinion 03-429 focused on three areas of concern:

- The obligations of a partner or supervisory lawyer to take steps to prevent an impaired lawyer in the firm from violating the Rules of Professional Conduct;

- Whether lawyers in the firm have an obligation to inform the appropriate professional authority or the impaired lawyer's clients or prospective clients that the impaired lawyer has violated the Rules; and

- The obligations that lawyers in the firm may have when the impaired lawyer leaves the firm.

The Opinion noted that the Rules of Professional Conduct provide guidance under these circumstances, citing to Rules 1.16 Declining or Terminating Representation and 5.1 Responsibilities of Partners, Managers and Supervisory Lawyers. The current edition of the ABA Model Rules is located online here.

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Subpart (a)(2) of Rule 1.16 states:

(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:

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

Rule 5.1 states:

(a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.

(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.

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

(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerial authority 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 a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

(Please note that in 2002 the ABA Model Rules underwent a substantial revision pursuant to the ABA Et hics 2000 Commission's (E2K) recommendations. The E2K Web site is located here. The E2K's Official Reporter's explanation of changes memoranda for each Rule is available here.)

The Opinion discussed the lawyer's obligations under Rule 5.1 stating:

The firm's paramount obligation is to take steps to protect the interests of its clients. The first step may be to confront the impaired lawyer with the facts of his impairment and insist upon steps to assure that clients are represented appropriately notwithstanding the lawyer's impairment. Other steps may include forcefully urging the impaired lawyer to accept assistance to prevent future violations or limiting the ability of the impaired lawyer to handle legal matters or deal with clients. ABA Formal Op. 03-429 at page 4.

Citing Rule 8.3 Reporting Professional Misconduct, the opinion stated that a lawyer may have an obligation to report an impaired lawyer's violation of the Model Rules that raises a substantial question as to the lawyer's honesty, trustworthiness or fitness as a lawyer. The opinion stated:

... if partners in the firm and the supervising lawyer reasonably believe that the previously impaired lawyer has resolved a short-term psychiatric problem that made the lawyer unable to represent clients competently and diligently, there is nothing to report. [FN20] Similarly, if the firm is able to eliminate the risk of future violations of the duties of competence and diligence under the Model Rules through close supervision of the lawyer's work, it would not be required to report the impaired lawyer's violation. [FN21] If, on the other hand, a lawyer's mental impairment renders the lawyer unable to represent clients competently, diligently, and otherwise as required by the Model Rules and he nevertheless continues to practice, partners in the firm or the supervising lawyer must report that violation. ABA Formal Opinion 03-429 at page 5.

To the extent that making such a report would involve the disclosure of client confidences under Rule 1.6 Confidentiality of Information, the opinion cautioned that the lawyer would need to get the client's consent. See, Rule 8.3(c).

Finally, the opinion discussed the firm's obligations to existing and former clients when the impaired lawyer has left the firm. The opinion stated that under Rule 1.4 Communication, the firm may have an obligation to inform an existing client of the circumstances surrounding the impaired lawyer's withdrawal, but must be careful to limit any such communications to those for which there is a reasonable factual basis. With regard to former clients, (clients that have decided to follow the departed lawyer) the firm has no obligation to inform them of its belief that the lawyer is impaired, but should be careful in any subsequent communication with the former client not to give that impression that it endorses the lawyer's ability to competently and diligently represent the client.

Formal Opinion 03-431 addressed a lawyer's obligations to report a rule violation by another lawyer that is not in his firm whom the lawyer believes suffers from a mental condition that materially limits the subject lawyer's ability to represent the client. As in Opinion 03-429, the opinion stated that the lawyer may consider consulting with a mental health care professional in order to determine how to proceed. It also suggested contacting an established lawyer assistance program (LAP). If the impaired lawyer is practicing within a law firm, the lawyer might also consider contacting the subject lawyer's partners or supervisory lawyers regarding the matter. The opinion concludes that if the subject lawyer's impairment raises a substantial question as to the subject lawyer's fitness to practice, the lawyer may have an obligation to report under Rule 8.3. The opinion cautions that since under most circumstances, the lawyer will learn of the other lawyer's impairment through the representation of a client, he should obtain his client's consent under Rule 1.6 before he makes the report.

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II. State Bar Ethics Opinions

State and local bar association ethics opinions that discuss related issues include Philadelphia Opinions 2000-12 and 95-1, Pennsylvania State Bar Opinion 98-124 and 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 *23 client, and having deposited firm funds into the partner's own account must report the misconduct to the disciplinary authorities.

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 opinion stated:

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.

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 may have 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, Missouri Opinion 960249 and Rhode Island Supreme Court Opinion 94-7o [PDF] (1994).

Both of these opinions state that the successor lawyer has a duty to inform his client of the prior lawyer's possible malpractice. The Rhode Island opinion, citing to the Rhode Island rules regarding communication and lawyer as advisor, states

"[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."

III. Other ABA model standards and resources

Rule 23(C) of the ABA Model Rules for Lawyer Disciplinary Enforcement (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." Under Model Rule 8.3(c) of the ABA Model Rules of Professional Conduct (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. For further information on Lawyer Assistance Programs, See the ABA Commission on Lawyer Assistance Programs (COLAP) Web site that is located here, and COLAP maintains a national directory of LAP programs here.

More information on this topic is available at this online resource page.

ETHICSearch is intended to stimulate awareness of ethical problems and illustrate the varying approaches of different jurisdictions. It is not intended as legal advice. The ABA Model Rules of Professional Conduct and the opinions discussed are advisory only; the ethics rules, laws and court decisions of your jurisdiction may dictate a different result.

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