What do a firm's partners and supervisors have to do when a lawyer in the firm is mentally impaired?

Plain-English summary

The opinion addresses three sets of obligations a firm has toward a lawyer in the firm who is mentally impaired: preventing rule violations, responding once a violation has occurred, and handling matters after the impaired lawyer leaves. Its premise is that impairment does not lower the standard: "simply stated, mental impairment does not lessen a lawyer's obligation to provide clients with competent representation." Rule 1.16(a)(2) requires a lawyer to decline or withdraw from a representation when a mental condition materially impairs her ability to represent the client, and because impaired lawyers may be unaware of or in denial about the condition, partners and supervisors must act.

On prevention, the committee grounds the duty in Rule 5.1: partners and managers must make reasonable efforts to put policies in place giving reasonable assurance that all lawyers comply with the rules (5.1(a)), and direct supervisors must make reasonable efforts to ensure a supervised lawyer conforms (5.1(b)). The committee states the firm's "paramount obligation is to take steps to protect the interests of its clients," which may mean confronting the lawyer, urging acceptance of assistance, limiting or reassigning the lawyer's matters, or in an appropriate case preventing the lawyer from rendering services. A failure to intervene where reasonable remedial action could have avoided consequences can itself implicate Rule 5.1(c) and Rule 8.4(a).

On response and departure, the committee explains that a reportable event under Rule 8.3 arises only where the violation raises a substantial question of fitness; no report is required if the condition has ended or the firm eliminates the risk of future violations through close supervision, but "if 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." When a matter is still pending, the firm cannot simply substitute counsel silently; Rule 1.4 requires advising the client of facts surrounding the change to the extent reasonably necessary for an informed decision. The opinion stresses that "the obligation to report a violation of the Model Rules by an impaired lawyer is not eliminated by departure of the impaired lawyer," and that any transition communications must avoid false or misleading impressions under Rules 7.1 and 8.4(c).

In practice

Under this opinion, and under the Model Rules as they stood at the time, the firm's first duty is preventive and client-protective: use Rule 5.1 supervisory measures to keep an impaired lawyer's condition from harming clients. The opinion treats the failure to withdraw under Rule 1.16(a)(2) as the underlying violation, conditions the Rule 8.3 reporting duty on a substantial question of fitness, and ties any duty to inform clients to Rule 1.4. It also makes clear the reporting duty survives the lawyer's resignation or termination, while limiting client communications to statements with a reasonable factual foundation.

Common questions

Q: A partner at my firm is clearly impaired. What does the firm have to do?

A: Take reasonable protective steps. The opinion concludes that when the impairment is known, "steps must be taken that are designed to give reasonable assurance that such impairment will not result in breaches of the Model Rules," with protecting clients as the paramount obligation.

Q: Do we always have to report an impaired colleague to the bar?

A: Not always. The opinion limits mandatory reporting to violations raising a substantial question of fitness, and says no report is required if the condition has ended or the firm's close supervision eliminates the risk of future violations.

Q: Can we just quietly move the client's matter to another lawyer?

A: Not silently. The opinion reads Rule 1.4 to require advising the client of the facts surrounding the change to the extent reasonably necessary for the client to make an informed decision about counsel.

Q: The impaired lawyer resigned. Are we off the hook on reporting?

A: No. The opinion states "the obligation to report a violation of the Model Rules by an impaired lawyer is not eliminated by departure of the impaired lawyer."

Background and rules framework

The opinion interprets Model Rule 5.1(a), (b), and (c) (managerial and supervisory responsibilities), Rule 1.16(a)(2) (withdrawal for an impairing mental condition), Rule 8.3(a) (duty to report violations raising a substantial question of fitness), Rule 1.4 (communicating with clients about a change of responsibility), and Rules 8.4(a), 8.4(c), and 7.1 (assisting violations, deceit, and misleading communications), with Rule 1.6 limiting voluntary disclosure about a departing lawyer. It is based on the Model Rules as amended in August 2003.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 5.1(a), (b), (c) (managerial and supervisory duties)
• ABA Model Rule 1.16(a)(2) (withdrawal for impairing condition)
• ABA Model Rule 8.3(a) and Comment [3] (duty to report)
• ABA Model Rule 1.4(b) (communication about change of responsibility)
• ABA Model Rules 8.4(a), 8.4(c), 7.1, 1.6 (assisting violations; deceit; misleading communications; confidentiality)

Statutes:

• Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq.

Cases:

• Simpson v. Ernst & Young, 100 F.3d 436 (6th Cir. 1996)

Other opinions cited:

• Philadelphia Bar Ass'n Op. 00-12 (2000)
• N.Y.C. Bar Op. 1995-5 (1995)

See also

• ABA Formal Op. 03-431: Reporting an Impaired Lawyer Outside Your Firm
• CA COPRAC Op. 2021-206: Duties Arising From a Colleague's Impairment
• PBA Formal Op. 2020-400: Duties Toward an Impaired Lawyer

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: 03-429.pdf