Guidance for Lawyers Who See Solo Practitioner Becoming Impaired

By Joan C. Rogers

Lawyers can’t sit on their hands if they see a solo attorney continuing to practice when he’s obviously impaired and bungling client matters, the Virginia state bar’s ethics committee advised Aug. 30 (Virginia State Bar Ethics Comm., Op. 1887, 8/30/2017).

On the other hand, lawyers don’t have any ethical obligation to take action when they notice a solo is impaired but he’s still apparently providing competent representation, according to the opinion.

The guidance supplements an earlier opinion that addressed the duties of supervisory lawyers in a firm to take preemptive action when a lawyer in the firm is suffering from an impairment that might affect her ability to represent clients. Virginia Ethics Op. 1886 (2016).

The new opinion looks at whether lawyers who aren’t supervising an attorney have any duty to act when they become aware the attorney is becoming impaired.

The bar produced the opinions in the wake of a landmark study by the ABA and the Hazelden Betty Ford Foundation that found alarmingly high levels of substance use and other mental health concerns among American lawyers.

Still Functioning Okay

The committee said that except for law firm partners and supervisors, lawyers don’t have a duty to proactively address another lawyer’s impairment.

The reporting duty under Virginia Rule of Professional Conduct 8.3(a) comes into play only when a lawyer has reliable information that the impaired lawyer has committed a rule violation that raises a substantial question about the lawyer’s honesty, trustworthiness, or fitness to practice law, the committee said.

Not every rule violation meets that standard, and a lawyer’s impairment by itself doesn’t necessarily violate professional conduct rules at all, the committee said.

The committee found that Rule 8.3 doesn’t require reporting in a situation where nonsupervisory lawyers believe that a lawyer is impaired but they don’t know of any specific misconduct that would trigger the reporting duty in Rule 8.3(a).

As an example, the committee described a hypothetical scenario where prosecutors, judges, and other lawyers notice changes in a respected criminal defense attorney who practices on his own.

The other lawyers notice that the attorney’s representation of clients isn’t up to his previous standards, and he sometimes seems scattered and disorganized. However, he still appears to be competent and is still able to handle a court proceeding appropriately.

The other lawyers have no duty to take any action to address the solo attorney’s impairment where there’s no evidence that his ability to represent clients is currently compromised, the committee advised.

Accident Waiting to Happen

However, nonsupervisory lawyers do have a duty to report another attorney if they have reliable information that the attorney is currently materially impaired in her ability to represent clients and is continuing to represent clients in violation of her duty to withdraw or decline representation, the committee advised.

Rule 1.16(a)(2) requires a lawyer to decline representation or withdraw if “the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.”

Violation of that rule will often trigger a reporting duty under Rule 8.3(a) because a material impairment in a lawyer’s ability to represent clients almost by definition raises a substantial question about the lawyer’s fitness to practice, the committee said.

The committee illustrated this point through a hypothetical scenario where associates develop concerns about the lawyer who’s the sole owner and managing partner of the firm. They see that after a car accident, she’s getting increasingly forgetful and sometimes lashes out at employees or opposing counsel when they have to correct her or remind her of something.

The associates know of a number of near-misses where she would have blown a key deadline if someone else hadn’t reminded her, and they’ve noticed that she overlooks obvious issues in conversations with clients. The associates believe she isn’t able to competently and diligently represent clients on her own, yet she rejects any help or input.

In this situation the associates have a duty to report the attorney to the bar under Rule 8.3(a), the committee said. Although the associates have a duty of confidentiality to the firm’s clients under Rule 8.3(d), it’s possible in many cases to make a report without breaching that duty, it said.

Getting Help

The committee also said that whether or not a bar complaint is required, a lawyer who is concerned about another lawyer’s possible impairment could also contact Lawyers Helping Lawyers for guidance, or she could encourage the impaired lawyer to make that contact.

To contact the reporter on this story: Joan C. Rogers in Washington at jrogers@bna.com

To contact the editor responsible for this story: S. Ethan Bowers at sbowers@bna.com

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