What must an Alaska lawyer do after observing that another lawyer may be impaired, and when do firm duties or mandatory reporting apply?
Apply this to your situation
This page answers the general question as of 2022. Ezel answers yours: whether it's allowed on your facts, under the current Alaska Rules of Professional Conduct, with citations.
Plain-English summary
The opinion begins by separating impairment from professional misconduct. An impairment is not itself a violation of the Alaska Rules of Professional Conduct, and the opinion says lawyers should not speculate about another lawyer's condition. The analysis instead focuses on objective factors that have caused, or appear reasonably likely to cause, rule violations.
For lawyers in a firm or supervisory relationship, ARPC 5.1 and 5.2 may require action before the circumstances trigger a disciplinary report. Managers must make reasonable efforts to establish measures that give reasonable assurance of rule compliance, supervisors must make reasonable efforts to ensure a subordinate lawyer complies, and a lawyer with authority may be responsible for failing to take reasonable remedial action when consequences can still be avoided or mitigated. The opinion identifies measures such as confronting the lawyer, changing the lawyer's workload, adding supervision, protecting client communications, or preventing the lawyer from continuing to provide services when necessary to secure compliance.
ARPC 8.3 applies when the observing lawyer knows of a rule violation that raises a substantial question about the other lawyer's honesty, trustworthiness, or fitness. The opinion explains that "substantial" concerns the seriousness of the possible offense, not how much evidence the observing lawyer possesses. Information protected by ARPC 1.6 and information learned through an approved lawyer or judge assistance program are excluded by ARPC 8.3(c).
The three scenarios illustrate the distinction. Repeated missed hearings, failures to communicate, lack of competence, and frivolous filings required reports in the solo-practitioner scenario. A partner's substance-related competence, diligence, and communication violations required both reporting and reasonable remedial action within the firm. By contrast, a third scenario involving missed minor deadlines and delayed client communication required internal action under ARPC 5.1 but had not yet reached the level requiring an ARPC 8.3 report.
In practice
Under this opinion, the inquiry turns on observed conduct and the duties attached to the observing lawyer's role. Managers and supervisors may have to use firm systems and take reasonable remedial action under ARPC 5.1 even when formal reporting is not yet required. When known misconduct raises a substantial question about honesty, trustworthiness, or fitness, ARPC 8.3 requires informing the appropriate disciplinary authority unless an exception applies.
The opinion states that a call identifying the lawyer and issue to Bar Counsel may satisfy the duty to inform, and Bar Counsel can advise whether a formal grievance is necessary. When the circumstances do not yet involve professional misconduct, the opinion points to the Lawyers' Assistance Committee as a confidential source of assistance and referrals.
Common questions
Q: Does suspected impairment automatically require a report to Bar Counsel?
A: No. The opinion states that impairment alone is not a rules violation and directs lawyers to focus on objective conduct. Reporting becomes mandatory under ARPC 8.3 when the lawyer knows of a violation that raises a substantial question about honesty, trustworthiness, or fitness.
Q: What duties do firm managers and supervisors have regarding an impaired lawyer?
A: ARPC 5.1 requires managers to maintain measures giving reasonable assurance of rule compliance and supervisors to make reasonable efforts to ensure subordinate lawyers comply. When consequences can be avoided or mitigated, a lawyer with managerial or supervisory authority may be responsible for failing to take reasonable remedial action.
Q: Can internal action be required even when Rule 8.3 does not yet require reporting?
A: Yes. In the opinion's third scenario, the firm had to address missed deadlines and delayed client communication through its internal systems under ARPC 5.1, but the conduct had not yet reached the level requiring an ARPC 8.3 report.
Q: Can contacting Bar Counsel satisfy the reporting duty?
A: The opinion says a call to Bar Counsel identifying the lawyer and the issue may satisfy ARPC 8.3's requirement to inform the appropriate disciplinary authority. Bar Counsel may then advise whether a formal grievance is necessary.
Q: Does Rule 8.3 require disclosure of confidential information?
A: ARPC 8.3(c) excludes information protected by ARPC 1.6 and information learned while participating in an approved lawyers' or judges' assistance program.
Background and rules framework
The opinion principally applies ARPC 5.1, the counterpart of Model Rule 5.1, and ARPC 8.3, the counterpart of Model Rule 8.3. ARPC 5.1 addresses firm-wide compliance measures, direct supervision, and remedial action. ARPC 8.3 requires a lawyer who knows of sufficiently serious professional misconduct to inform the appropriate disciplinary authority, subject to the confidentiality and assistance-program exceptions in ARPC 8.3(c).
The opinion also discusses ARPC 1.1, 1.3, and 1.4 because impaired performance may affect competence, diligence, and client communication; ARPC 1.6 because confidentiality limits reporting; ARPC 1.16(a) because material physical or mental impairment can require declining or ending representation; and ARPC 5.2 because subordinate lawyers remain independently bound by the rules.
Citations and references
Rules of Professional Conduct:
- Model Rule 5.1 and ARPC 5.1 (firm managers, supervisors, and remedial action)
- Model Rule 5.2 and ARPC 5.2 (responsibilities of subordinate lawyers)
- Model Rule 8.3 and ARPC 8.3 (reporting professional misconduct)
- Model Rule 1.6 and ARPC 1.6 (confidentiality)
Other opinions cited:
- ABA Formal Ethics Op. 03-429 (2003): supervisory responses to lawyer impairment
- ABA Formal Ethics Op. 08-451 (2008): supervision of outsourced lawyers
- North Carolina 2013 Formal Ethics Opinion 8: mental impairment of a firm lawyer
- New York State Bar Opinion 822: reporting misconduct and lawyer assistance programs
- Virginia Legal Ethics Opinion 1886: impairment of a lawyer within a firm
- Virginia Legal Ethics Opinion 1887: impairment of a lawyer without firm supervision
See also
- NC State Bar 2013 FEO 8: impaired firm lawyer
- Virginia LEO 977: substance abuse and reporting
- NY State Bar Op. 822: where misconduct must be reported
Source
- Landing page: Alaska Bar adopted ethics opinions
- Original PDF: Alaska Ethics Opinion 2022-1
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
ALASKA BAR ASSOCIATION
ETHICS OPINION 2022-1
A Lawyer’s Duty with Respect to Potentially Impaired Members of the Bar
ISSUE: Lawyer impairments—related to substance abuse, aging, mental health, and
otherwise—are not infrequent in Alaska and elsewhere. This Opinion examines what
a lawyer must do under the Alaska Rules of Professional Conduct (“ARPC”) when
they observe that another lawyer might be impaired.
SHORT ANSWER: Having an impairment is not, in and of itself, a violation of the
ARPC. However, lawyers with an impairment may fail to satisfy various professional
responsibilities under the ethics rules, including competence (ARPC 1.1), diligence
(ARPC 1.3), and others. Lawyers who observe such impairments should confer with
Bar Counsel about appropriate next steps. Resources like the Alaska Bar Association
Lawyers’ Assistance Committee are also helpful for obtaining confidential assistance
and referrals.1 Beyond those best practices, under ARPC 8.3 lawyers have an
affirmative duty to report a lawyer who has committed a violation of the ARPC that
raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness
as a lawyer, unless the information is protected by a duty of confidentiality under
ARPC 8.3(c). ARPC 5.1 provides additional requirements for lawyers in a firm setting,
and for other lawyers with managerial or supervisory roles.
Lawyers working with one another—whether under ARPC 5.1, a resource like the
Lawyers’ Assistance Committee, or otherwise—may help address impairment issues
more rapidly and effectively than the ARPC 8.3 disciplinary process. At base, Rules
5.1 and 8.3 are designed to protect the public and the reputation of the legal
profession, and should be understood with this purpose in mind.
RULES: 5.1, 8.3.
FACT SCENARIOS
Fact Scenario 1—Aging: Lawyer Adrian, a septuagenarian solo practitioner, has
had difficulty with the court’s new e-filing requirements, and is also missing various
filing deadlines and court hearings. Opposing counsel, Blair, noticed that Adrian
appeared to be falling asleep during a hearing at which Adrian did appear—albeit
late. And, in the process of settlement negotiations, weeks went by after Blair sent
an offer detailed in an encrypted email attachment. Blair emailed Adrian to ask for
an update, and Adrian replied that he had not yet consulted his client because he
could not open the attachment. Another lawyer, Casey—who has known Adrian for a
long time—is concerned because Adrian is taking on frivolous workers compensation
1 See https://alaskabar.org/sections-committees/lawyers-assistance-committee/.
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and personal injury cases—areas of practice that are unfamiliar to Adrian. When she
asks Adrian why, Adrian says he cannot pass up these cases because they will bring
in some much-needed income. Adrian says he has no retirement savings and cannot
afford not to take a case, even if completely meritless, for a $500 retainer or possible
recovery on a contingency fee. What should Blair and Casey do under the ARPCs
based on their observations?
Conclusion 1: Under ARPC 8.3(a) (Reporting Professional Misconduct), Blair and
Casey are required to report Adrian’s behavior to Bar Counsel. Adrian’s conduct
appears to violate ARPC 1.1 (Competence), ARPC 1.3 (Diligence), and ARPC 1.4
(Communication). ARPC 8.3(a) provides that if the lawyer knows of a violation—
either a single violation or, as here, collectively troubling violations—of the ARPCs
that raise a substantial question as to the other lawyer’s honesty, trustworthiness, or
fitness as a lawyer in other respects, then they are obligated to make a report to Bar
Counsel. Contacting Bar Counsel in this situation does not necessarily mean the
reporting lawyer will be the grievant in a discipline case against the other lawyer. A
lawyer who is concerned about another lawyer should contact Bar Counsel to find out
if what they know rises to the level of imposing a duty to report under ARPC 8.3.
Fact Scenario 2—Substance Abuse: Lawyer Robin receives a call from a client
who works with Robin’s law partner, Pat, complaining that the client has had a lot of
difficulty reaching Pat, and that Pat has recently appeared completely disheveled.
The client says that Pat has exhibited erratic behavior over the past few months like
pacing around a conference room for an hour when Pat met with the client, not
making eye contact, and showing up with a 10 inch high stack of seemingly
disorganized papers. Robin knows that Pat was not prepared for recent court
proceedings and in general appears to be struggling to keep up with his work. Robin
has noticed that Pat has been drinking much more alcohol than he used to at social
gatherings, and recently even at the office at his desk during the workday. What
should Robin do under the ARPCs based on this information?
Conclusion 2: Robin has obligations under ARPC 5.1 (Responsibilities of Partners,
Managers, and Supervisory Lawyers) and ARPC 8.3(a) (Reporting Professional
Misconduct) to report Pat’s behavior.2 Pat’s behavior appears to violate ARPC 1.1
(Competence), ARPC 1.3 (Diligence), and ARPC 1.4 (Communication); reporting is
required under ARPC 8.3(a) because these violations raise a substantial question as
to Pat’s fitness as a lawyer. As Pat’s law partner, Robin also has an obligation under
ARPC 5.1 to take reasonable remedial action, if possible, to ensure that any harm to
the client is mitigated, and to ensure that systems are in place within Robin and Pat’s
2 As this scenario demonstrates, obligations under Rules 5.1 and 8.3 are not mutually
exclusive.
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firm to prevent future harm (see more on the requirements of ARPC 5.1 in Fact
Scenario 3).3
Fact Scenario 3—Firm Settings: Lawyer Edwin is a named partner with a large
book of business at a local firm, and has been prescribed anti-depressants to help him
cope with a death in his family. Lawyer Frances is a junior associate at the firm who
is working with Edwin on a litigation matter. Frances has observed that Edwin does
not seem to retain much detail about the facts of the case, has confused the names of
the other parties on occasion, and has missed some minor deadlines. Edwin has
insisted that he remain primarily responsible for communicating with the client,
which is a long-term client of Edwin’s. One week ago Edwin received a copy of a
scheduling order and a favorable settlement proposal from the opposing counsel, but
he has not forwarded them to the client for review despite two reminders from
Frances. When Frances offered to forward the information, Edwin specifically
directed her not to do so, but gave no assurance that he would or would have anyone
else do so. Now, opposing counsel’s requested response date is only two days away.
Opposing counsel has made clear that this is the final settlement offer before trial.
What should Frances and the firm do?
Conclusion 3: Under ARPC 5.1 the firm must make reasonable efforts to have
measures in place that ensure that its lawyers comply with the Rules of Professional
Conduct. This can include measures whereby junior lawyers can make confidential
reports to a designated partner or special committee. ARPC Rule 1.4 is at issue here
since it requires lawyers to keep clients reasonably informed about the status of a
matter undertaken on a client’s behalf. Frances should utilize any internal reporting
systems at the firm, and in turn, the firm must take appropriate remedial action to
ensure its lawyers’ compliance with the ARPC. Such remedial action could include
confronting Edwin about the situation, ensuring that he provides the case update to
the client, and implementing internal measures to ensure that Edwin’s
communications with clients are monitored by others at the firm going forward for a
certain period of time.
Note that Edwin’s behavior does not yet rise to a level that mandates formal reporting
under ARPC 8.3(a). Even though Edwin has missed some minor deadlines and should
have been more prompt with client communication, not all violations of the ARPCs
require reporting under ARPC 8.3; only violations that raise a substantial question
as to another lawyer’s honesty, trustworthiness, or fitness as a lawyer require
reporting.
3 If Robin was aware of Pat’s substance abuse issues earlier—before Pat violated any
Rules of Professional Conduct and prejudiced any clients—Robin could have sought
assistance from resources like the Lawyers’ Assistance Committee or by reaching out
to Bar Counsel for advice, in hopes that such resources could work with Pat to address
his apparent substance abuse issues.
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DISCUSSION
Multiple rules are potentially implicated when a lawyer faces a substance
dependency issue or well-being impairment. The Preamble to the ARPC states that
“[c]ompliance with the Rules, as with all law in an open society, depends primarily
upon understanding and voluntary compliance, secondarily upon reinforcement by
peer and public opinion and finally, when necessary, upon enforcement through
disciplinary proceedings.” Some or all of these avenues may be required if a lawyer’s
impairment is affecting their compliance with the ARPCs.
This Ethics Opinion discusses (I) the ARPCs most likely to be implicated when a
lawyer is impaired, (II) who has an obligation to act when they work with an impaired
lawyer, and (III) when knowledge of an impairment requires reporting, and to whom.
Numerous other jurisdictions have issued opinions on similar topics.4
At the outset, we note that an impairment is not, in and of itself, a violation of the
Rules of Professional Conduct. Attorneys should not speculate about another’s
condition, but rather, should focus on objective factors that have caused, or appear
reasonably likely to cause, violations of the Rules, and how to proceed from there.
4 See, e.g., Va. State Bar Ethics Op. 1887 (2017), available at https://www.vacle.org/
opinions/1887.htm (concerning impairment of lawyer over whom no one has
supervisory authority); Va. State Bar Ethics Op. 1886 (2016), available at
https://www.vacle.org/opinions/1886.htm (concerning impairment of firm lawyer);
N.C. State Bar Ethics Op. 2013-8 (2014), available at https://www.ncbar.gov/for
lawyers/ethics/adopted-opinions/2013-formal-ethics-opinion-8/ (concerning mental
impairment of firm lawyer); Ky. Bar Ass’n Ethics Op. KBA E-430 (2010), available at
https://cdn.ymaws.com/www.kybar.org/resource/resmgr/Ethics_Opinions_(Part_2)_/
kba_e-430.pdf (considering host of questions related to impairment issues); N.Y. Bar
Ass'n Ethics Op. 822 (2008), available at https://nysba.org/ethics-opinion-822/
(concerning whether filing a report with a lawyer assistance program satisfies
violation reporting requirement); ABA Formal Ethics Op. 03-429 (2003); S.C. Bar
Ethics Op. 02-13 (2002), available at https://www.scbar.org/lawyers/legal-resources-
info/ethics-advisory-opinions/eao/ ethics-advisory-opinion-02-13/ (concerning medical
condition that renders attorney unable to practice with competence); Phila. Bar Ass’n
Ethics Op. 2000-12 (2000), available at https://www.philadelphiabar.org/page/
EthicsOpinion2000-12?appNum =1 (concerning aging impairments and dissolving
firm); Utah State Bar Ethics Op. 98-12 (1998), available at https://www.utahbar.org/
wp-content/uploads/2017/12/ 1998-12.pdf (concerning use of controlled substances);
W.V. State Bar Ethics Op. 92-04 (1992), available at http://www.wvodc.org/pdf/lei/
Chronologic/LEI-92-04.pdf (concerning alcoholism and misappropriation of client
funds).
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I. ARPCs potentially implicated by lawyer impairment.
The following is a non-exhaustive list of the ARPCs that might be implicated by a
lawyer practicing with an impairment.
o ARPC 1.1: Competence. Requires “competent representation,” including
maintaining professional skills by keeping abreast of legal and technology
changes.
o ARPC 1.3: Diligent Representation. Requires that a lawyer act with
reasonable diligence and promptness when representing a client. Impaired
lawyers may not be able to provide diligent and prompt representation. The
Comments indicate that sole practioners’ future inability to assist clients may
require that they prepare a plan to address that eventuality.
o ARPC 1.4: Communications with Clients. Requires regular and prompt
client communication. Under ARPC 5.1, lawyers in a “firm” may be required to
communicate with a client about services performed by an impaired lawyer.
o ARPC 1.6: Duty of Confidentiality. Prohibits revealing most client
confidences and secrets without consent. The rule covers direct statements—
which a lawyer might not be aware of if impaired—and the need to safeguard
papers and devices with client information, which may not be feasible if facing
diminished capacity.
o ARPC 1.16(a): Declining or Terminating Representation. Requires a
lawyer to forgo or end representation when a “physical or mental condition
materially impairs” the represenation. The Comments discuss “competent[]”
and “prompt[]” representation to completion.
o ARPC 5.1 and 5.2: Responsibilities of Partners and Subordinate
Lawyers. See Section II, which addresses who has an obligation to act when
they observe an impaired lawyer with whom they have a work relationship.
o ARPC 5.3: Responsibilities Regarding Nonlawyers. Lawyers with direct
supervisory authority over nonlawyers are usually responsible for the
nonlawyer’s conduct. There is a risk of violation if a nonlawyer is impaired, or
if an impaired lawyer cannot ensure that nonlawyer’s conduct meets the
lawyer’s professional duties.
o ARPC 8.3 and 8.4: Misconduct & Reporting. See Section III, which goes
beyond the requirements of ARPC 5.1 and 5.2 and addresses what lawyers can
and should do when they observe another lawyer with an impairment,
regardless of firm relationships or supervisory capacity.
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Again, this list is non-exhaustive. A lawyer’s ability to comply with other rules—such
as ARPC 1.15 (Safekeeping Property), ARPC 3.1 (Meritorious Claims and
Contentions), ARPC 3.2 (Expediting Litigation), and ARPC 3.3 (Candor Toward the
Tribunal)—might be clouded if facing an impairment.
II. Law firm and supervisory relationships give rise to an obligation to
act regarding impaired or potentially impaired lawyers.
ARPC 5.1 and 5.2 govern who has an obligation to act when they work with or observe
an impaired lawyer in a firm or supervisory setting. Notably, ARPC 9.1(e) defines
“firm” or “law firm” to broadly include any “lawyer or lawyers in a law partnership,
professional corporation, sole proprietorship, or other association authorized to
practice law. It also denotes lawyers employed in a legal services organization or in
the legal department of a corporation or other organization.” As a result, ARPC 5.1
and 5.2 are not limited to private law firms in a traditional sense.
A. Lawyers with managerial responsibility within a “firm” have a
general obligation to ensure measures are in place to confirm
compliance with the Rules.
ARPC 5.1(a) provides that “[a] partner in a law firm, and a lawyer who individually
or together with other lawyers has 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.”5 The measures required depend on the firm’s size, structure, and the
nature of its practice. The Comments to ARPC 5.1 explain that, “[i]n a small firm of
experienced lawyers, informal supervision and periodic review of compliance with the
required systems ordinarily will suffice. In a large firm, or in practice situations in
which difficult ethical problems frequently arise, more elaborate measures may be
necessary. Some firms, for example, have a procedure whereby junior lawyers can
confidentially refer ethical problems directly to a designated senior partner or special
committee.” This obligation requires that a firm’s systems ensure compliance by all
lawyers at the firm—including partners and managers—not just subordinate or
supervised attorneys. Failure to have such a system in place may subject all partners
in a firm to potential discipline. See Section II.C, infra.
5 As noted in the Comments, ARPC 5.1(a) applies to “members of a partnership, the
shareholders in a law firm organized as a professional corporation, and members of
other associations authorized to practice law,” as well as “lawyers having comparable
managerial authority in a legal services organization or a law department of an
enterprise or government agency; and lawyers who have intermediate managerial
responsibilities in a firm.”
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B. Lawyers with supervisory authority have specific
responsibilities with respect to lawyers whom they supervise.
ARPC 5.1(b) provides that “[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.” A lawyer may be deemed to have
supervisory authority over an attorney not within the same “firm,” for example, a
contract attorney hired by a lawyer to assist with a matter. See ABA Formal Ethics
Op. 08-451 n.2 (2008) (“A contrary interpretation would lead to the anomalous result
that lawyers who outsource have a lower standard of care when supervising
outsourced lawyers than they have with respect to lawyers within their own firm.”).
When a supervisor knows a subordinate may be impaired, reasonable measures to
ensure compliance with the ethics rules may include confronting the lawyer,
forcefully urging the lawyer to seek help, limiting or modifying the lawyer’s workload,
providing additional project-specific supervision or collaboration with other attorneys
within the firm, or preventing the lawyer from rendering legal services to firm clients.
ABA Formal Ethics Op. 03-429 (2003). A supervising attorney who is impaired may
run afoul of ARPC 5.1(b) if they are unable to make the “reasonable efforts” required
by the Rule to ensure compliance by their subordinates.
C. Lawyers with managerial or supervisory roles may be
responsible for the ethical violations of an impaired lawyer.
Taken together, ARPC 5.1(a)-(c) provide that an observing lawyer is responsible for
the ethical violations of an impaired lawyer if the observing lawyer has managerial
or supervisory authority over the other lawyer under ARPC 5.1(a) or 5.1(b), and
“knows of the conduct at a time when its consequences can be avoided or mitigated
but fails to take reasonable remedial action.” ARPC 5.1(c).
D. Subordinate lawyers have independent—though limited—
obligations in the setting of a “firm.”
Subordinate lawyers are bound by the Rules of Professional Conduct, even when they
“act[] at the direction of another person,” including a supervising attorney. However,
ARPC 5.2(b) provides that a subordinate lawyer does not violate the Rules if the
subordinate lawyer “acts in accordance with a supervisory lawyer’s reasonable
resolution of an arguable question of professional duty.” Thus, a subordinate attorney
may be deemed to violate the ARPCs if they undertake a course of action based on
the direction of an impaired lawyer if that direction is unreasonable under the Rules.
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III. When knowledge of an impairment requires reporting, and to whom.
Lawyers who encounter other lawyers who are potentially impaired may have either
an option or obligation to address the issue, depending on circumstance.
If the impairment has not yet led to professional misconduct, the observing lawyer
should utilize resources like the Lawyers’ Assistance Committee to facilitate potential
assistance or referrals to address the impairment. Reports to the Lawyers’ Assistance
Committee can be made anonymously and the source of the referral will be kept
confidential from the potentially impaired lawyer.
If the impairment has led to suspected professional misconduct, then the observing
lawyer has an obligation to determine whether the circumstances warrant a report
to Bar Counsel under ARPC 8.3 (as outlined below). A referral to the Lawyers’
Assistance Committee is also still encouraged.
ARPC 8.3(a) states that “[a] lawyer who knows that another lawyer has committed a
violation of the Rules of Professional Conduct that raises a substantial question as to
that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects shall
inform the appropriate disciplinary authority unless the lawyer reasonably believes
that the misconduct has been or will otherwise be reported” by someone else. In many
instances, a call to Bar Counsel will suffice as “inform[ing] the appropriate
disciplinary authority”; Bar Counsel can advise if it is necessary to file a formal
grievance, which would initiate an investigation to determine if disciplinary
measures are warranted.6
As a corollary to this, ARPC 8.3(c) does not require disclosure of information learned
“while participating in an approved lawyers’ or judges’ assistance program,” or
information that is otherwise protected by ARPC 1.6 (Confidentiality).7 The
6 When in doubt, lawyers should call Bar Counsel for advice on how to proceed.
Generally, unless a lawyer specifies that they would like to file a formal grievance, a
call to Bar Counsel will not be considered as initiating a grievance under the Alaska
Bar Association Rules of Disciplinary Enforcement. A call informing Bar Counsel of
an issue—when the caller identifies the lawyer and the issue—may satisfy the
obligation under ARPC 8.3 without requiring that the lawyer file a formal grievance.
In some circumstances, the Bar may inform the caller that a grievance is necessary,
but ARPC 8.3 only requires the lawyer to “inform” the appropriate disciplinary
authority.
7 For example, a lawyer representing another lawyer whose professional conduct is
in question is bound by ARPC 1.6 to protect the lawyer-client’s confidences and
secrets and is neither required nor allowed to make a report under 8.3(a). The
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commentary to ARPC 8.3(c) explains that this exception is important to encourage
lawyers to seek treatment without hesitation. It also notes that not having this
exception—which allows lawyers to seek treatment confidentially and allows other
lawyers to facilitate lawyers’ or judges’ assistance programs—could result in
additional harm to the professional careers of lawyers and to the welfare of their
clients and the public.
Evidence of impairment may present in many different forms. It may consist of
repeated forgetfulness and inattention regarding deadlines, correspondence, or filing
requirements, or could, in some severe cases, consist of a single, sufficiently abhorrent
act or failing. The Comments to ARPC 8.3 caution that “an apparently isolated
violation may indicate a pattern of misconduct that only a disciplinary investigation
can uncover.” Oftentimes, based on reports from other lawyers—which can be
anonymous—Bar Counsel will reach out to the lawyer in question to see if the
situation can be addressed and discussed privately, professionally, and without the
need to resort to more formal disciplinary proceedings.
Judgment and discretion are required when applying ARPC 8.3 in these situations,
especially given the subjective nature of the word “substantial.” The Comments to
ARPC 8.3 note that “[t]he term ‘substantial’ refers to the seriousness of the possible
offense and not the quantum of evidence of which the lawyer is aware.” This Opinion
should not be read to suggest that a lawyer violates ARPC 8.3 if they do not report
every violation of the ARPCs related to an impairment about which they “know[].”
Rather, a failure to report a “know[n]” violation of an ARPC is itself a violation of
Rule 8.3 only when the underlying violation concerns wrongdoing that rises to the
level of that which “a self-regulating profession must vigorously endeavor to prevent.”
ARPC 8.3 Cmt.
“Know[ledge]” of a rule violation is itself a complex issue, since at times it might be
unclear whether another lawyer has actually violated a rule. Whenever an attorney
is concerned about another lawyer’s potential impairment and possible ARPC
violations, the concerned attorney should talk to Bar Counsel—even without
revealing the name of the attorney causing concern—to discuss at greater length the
terms at issue in the ARPCs and their application.
Approved by the Alaska Bar Association Ethics Committee on February 3, 2022.
Adopted by the Board of Governors on May 5, 2022.
Comments to ARPC 8.3 confirm that “[t]he duty to report misconduct is subordinate
to the duty of confidentiality set forth in Rule 1.6.”
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