Do I have to report another lawyer, not in my firm, whose mental impairment is hurting their clients?

Plain-English summary

The opinion examines the duty of a lawyer who learns that another lawyer, not in his firm, has a mental condition (temporary or permanent) that materially impairs her ability to represent clients. 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. When an impaired lawyer fails to withdraw and keeps representing clients, that failure is itself a Rule violation, and the committee concludes it "ordinarily would raise a substantial question requiring reporting under Rule 8.3."

The committee anchors the duty in actual knowledge. Under Rule 1.0(f), "knows" means actual knowledge, which may be inferred from circumstances, so the reporting duty arises only in limited situations. Impairment usually shows itself through a pattern of conduct reflecting failures of competence (Rule 1.1) or diligence (Rule 1.3), such as repeatedly missing deadlines or failing to make required filings. Because lawyers are not clinicians, they cannot diagnose impairment, but the opinion cautions that a lawyer "may not shut his eyes to conduct reflecting generally recognized symptoms of impairment," such as patterns of memory lapse or inexplicable behavior atypical of the affected lawyer. Knowing only that a lawyer drinks heavily or seems impaired socially is not enough; the reporting lawyer must know the condition is materially impairing the lawyer's representation of clients.

The opinion describes permissive steps short of reporting (consulting a mental-health professional about observed conduct, contacting a lawyer assistance program, or speaking with the affected lawyer or her firm) but stresses there is no duty to take them first, and "the affected lawyer's denials alone do not make the lawyer's knowledge non-reportable under Rule 8.3." If the impaired lawyer is in a firm and the firm acts to ensure she is not representing clients while impaired, the reporting lawyer need not report her past failure to withdraw; if the firm is unresponsive, the lawyer must report. The duty does not reach information protected by Rule 1.6 or learned through an approved lawyers assistance program; where reporting would reveal information relating to the reporting lawyer's own client, that client's informed consent is required.

In practice

Under this opinion, and under the Model Rules as they stood at the time, the reporting trigger is actual knowledge that an outside lawyer's impairment is materially limiting her client representation and that she is still representing clients without withdrawing. The opinion treats the impaired lawyer's failure to withdraw under Rule 1.16(a)(2), not the impairment itself, as the reportable violation. It separates that mandatory reporting duty from the permissive options of consulting a clinician, contacting a lawyer assistance program (which is allowed but not a substitute for disciplinary reporting), or approaching the lawyer's firm.

Common questions

Q: Opposing counsel seems impaired and keeps blowing deadlines. Do I have to report her?

A: Only if you actually know her condition is materially impairing her representation and she keeps representing clients. The opinion ties the duty to actual knowledge under Rule 1.0(f) that her impairment is materially limiting her client work.

Q: What exactly is the violation I'd be reporting?

A: Her failure to withdraw. The opinion concludes the reportable event is the impaired lawyer's "consequent violation of Rule 1.16(a)(2), which requires that she withdraw from the representation of clients."

Q: Can I just assume there's no problem if she denies it?

A: No. The opinion states "the affected lawyer's denials alone do not make the lawyer's knowledge non-reportable under Rule 8.3," and warns a lawyer "may not shut his eyes" to recognized symptoms of impairment.

Q: Is reporting her to a lawyer assistance program enough?

A: No. The opinion permits contacting a lawyer assistance program whether or not reporting is mandatory, but treats it as not a substitute for reporting to the disciplinary authority when Rule 8.3 applies.

Background and rules framework

The opinion interprets Model Rule 8.3(a) and (c) (the duty to report, and its exclusion of Rule 1.6-protected and lawyers-assistance-program information), Rule 1.16(a)(2) (mandatory withdrawal when a mental condition materially impairs representation), Rule 1.6 (confidentiality), Rule 1.0(f) ("knows"), and Rules 1.1 and 1.3 (competence and diligence) as the obligations an impaired lawyer typically fails. It also notes Rule 8.4(b) where impairment involves criminal conduct. It is based on the Model Rules as amended in August 2003.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 8.3(a), (c) and Comments [1], [3] (duty to report)
• ABA Model Rule 1.16(a)(2) (withdrawal for impairing mental condition)
• ABA Model Rule 1.6 (confidentiality)
• ABA Model Rule 1.0(f) ("knows"; actual knowledge)
• ABA Model Rules 1.1, 1.3, 8.4(b) (competence, diligence, criminal conduct)

Cases:

• In re Morris, 541 S.E.2d 844 (S.C. 2001)
• State ex rel. Oklahoma Bar Ass'n v. Southern, 15 P.3d 1 (Okla. 2000)
• In re Francis, 4 P.3d 579 (Kan. 2000)

Other opinions cited:

• ABA Formal Op. 03-429 (2003): obligations with respect to a mentally impaired lawyer in the firm

See also

• ABA Formal Op. 04-433: Reporting Misconduct of a Non-Practicing Lawyer
• 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: 03-431.pdf