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July 24 — Lawyers have no professional obligation to report a former partner's memory lapses to disciplinary officials unless the problem has resulted in an actual ethics violation, the Kansas bar's ethics committee advised July 1.
Even though Kansas Rule of Professional Conduct 8.3 is much broader than the ABA model rule, the committee concluded that no duty exists to report a lawyer's mental decline in the absence of knowledge that the lawyer has violated an ethics rule.
Lawyers concerned about a colleague's ability to represent clients competently should consider referring him to a lawyer assistance program, the opinion suggests.
In ABA Formal Ethics Op. 03-429, 19 Law. Man. Prof. Conduct 380 (2003), the ABA's ethics committee advised that if a lawyer becomes mentally impaired and breaches an ethics rule, the lawyer's violation must be reported if the lawyer continues to practice while his mental condition makes him unable to represent clients competently and diligently. But no report is required, the committee said, if the impairment that caused the breach has ended or if the risk of future violations is eliminated through close supervision of the lawyer's work.
In another ABA ethics opinion, the committee advised that if a lawyer suffers from a condition materially impairing her ability to practice, failure to withdraw ordinarily would raise a substantial question of fitness requiring reporting under Model Rule 8.3. A report of misconduct to an approved lawyers assistance program “is not a substitute for reporting to a disciplinary authority with responsibility for assessing the [lawyer's] fitness,” the opinion states. ABA Formal Ethics Op. 03-431, 19 Law. Man. Prof. Conduct 611 (2003).
Several state and local bar ethics opinions also make clear that the duty to report a lawyer's violation is not excused by the fact that it apparently resulted from mental, emotional or physical impairment:
▸North Carolina Ethics Op. 2003-2 (2003) (lawyer's violation of professional conduct rule must be reported under Rule 8.3(a) even if lawyer's unethical conduct stemmed from mental impairment; report to lawyers' assistance program does not satisfy reporting requirement).
▸Philadelphia Ethics Op. 2000-12, 17 Law. Man. Prof. Conduct 67 (2000) (lawyer dissolving his partnership may have duty under Rule 8.3(a) to inform disciplinary board that his partner, who has not handled cases since recent strokes impaired his memory and ability to read, intends to solicit firm's clients without revealing his disability; lawyer could consider advising partner that if he misstates his ability to represent clients, lawyer would be required to report him under Rule 8.3(a)).
▸South Carolina Ethics Op. 02-13 (2002) (lawyer who knows that colleague's medical condition makes him unable to provide competent representation must report any violations of competence rule that raise questions about his fitness as a lawyer).
▸Utah Ethics Op. 98-12, 14 Law. Man. Prof. Conduct 621 (1998) (lawyer with nonconfidential knowledge of another lawyer's unlawful drug use or possession must make report to bar disciplinary authorities; reporting to lawyers assistance panel does not suffice).
See also Colorado Ethics Op. 124 (2012), discussing how Rule 8.3(a) applies when a lawyer appears to be impaired by medical use of marijuana.
For further discussion, see “Panel Explores Duties to Colleagues, Clients When Lawyer Is Impaired or Knows of One,” 24 Law. Man. Prof. Conduct 122; “Program Explores Ethics Implications as More Lawyers Reach Advanced Age, 23 Law. Man. Prof. Conduct 308 (discussing final report of Joint Committee on Aging Lawyers); “Keep Aware of Liability, Employment Issues Raised by Impaired Lawyers, Panelists Advise,” 20 Law. Man. Prof. Conduct 316.
See generally NOBC-APRL-CoLAP Second Joint Comm. on Aging Lawyers, Final Report (April 2014).
A law firm asked the committee whether lawyers in the firm have a duty under Rule 8.3 to notify the Kansas Disciplinary Administrator that a former partner seems to be experiencing “cognitive degeneration.”
The firm said that before leaving to practice elsewhere, the partner started showing memory lapses such as forgetting discussions with staff, not being able to dial into a conference call and asking a client for a refresher about the representation. The firm did not know of any ethics violations resulting from the mental decline but believed that the problem may impact the lawyer's clients.
Kansas Rule 8.3(a) states: “A lawyer having knowledge of any action, inaction, or conduct which in his or her opinion constitutes misconduct of an attorney under these rules shall inform the appropriate professional authority.”
The committee pointed out the Kansas rule goes beyond Model Rule 8.3 by requiring lawyers to report themselves and by requiring violations to be reported even if they do not implicate a lawyer's honesty, trustworthiness or fitness as a lawyer.
But even under the Kansas version, the panel pointed out, the duty to report only applies if the reporting lawyer has knowledge of acts or omissions that the reporting lawyer believes violate the Kansas Rules of Professional Conduct. Therefore, lawyers in the inquiring firm do not have a duty to report the former partner's memory problem unless they know the lawyer has violated Rule 1.1 on competent representation or another of the ethics rules, the committee advised.
If lawyers in the firm are concerned about the lawyer's mental capacity to practice law competently, referring the ex-partner to the Kansas Lawyers Assistance Program is an option, the committee suggested. One purpose of that program, it noted, is to help lawyers who are experiencing problems in their practice due to mental disability resulting from advancing age.
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