What must a D.C. firm's partners and supervisors do when they reasonably believe a lawyer in the firm is impaired, and do they have to tell clients?
Apply this to your situation
This page answers the general question as of 2019. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion 377 (published October 2019) addresses the ethical duties that arise when lawyers and staff in a firm or government agency reasonably believe another lawyer in the organization is significantly impaired, where impairment means a mental condition (from age, substance use, or physical or mental health) that poses a risk to clients. The opinion supplements D.C. Opinion 246 and relies in part on ABA Formal Opinion 03-429. Its starting premise, drawn from the ABA opinion, is that mental impairment does not lessen a lawyer's obligation to provide competent representation, and that Rule 1.16(a)(2) bars representation or requires withdrawal when a lawyer's condition materially impairs the ability to represent a client.
The opinion works through three scenarios. First, partners and managerial or supervisory lawyers must, under Rule 5.1, make reasonable efforts to ensure the firm has measures giving reasonable assurance that all lawyers conform to the Rules, and to supervise an impaired lawyer; what is "reasonable" varies with firm size and structure. The opinion concludes a written impairment policy is not required, but recommends practices that encourage reporting without reprisal (such as a hotline, anonymous reporting, or a designated neutral lawyer). Measures may include speaking with the lawyer, requiring evaluation as a condition of employment, referring the lawyer to the Bar's Lawyer Assistance Program, limiting the lawyer's duties, or supervising the lawyer's work. Second, under Rule 8.3, any lawyer (managerial or not) who knows another lawyer has committed a violation raising a substantial question as to honesty, trustworthiness, or fitness must report to the appropriate authority (in D.C., the Office of Disciplinary Counsel), unless reporting would require disclosing information protected by Rule 1.6 or other law; the opinion restates the four-part test from Opinion 246. Third, when an impaired lawyer leaves the firm, supervisors may owe departing-lawyer clients enough information under Rule 1.4(b) to make an informed choice about whether to follow the lawyer, while disclosing only necessary, material facts and respecting the lawyer's privacy rights and Rule 8.4(c).
Throughout, the opinion stresses a balance between protecting clients and protecting the impaired lawyer's privacy and other rights under substantive law (such as employment and disability law), and notes that a fundamental purpose of addressing impairment is to encourage affected lawyers to seek help.
In practice
Under the D.C. rules as they stood at the time of the opinion, partners and managerial or supervisory lawyers who reasonably believe a firm lawyer is impaired must, under Rule 5.1, take reasonable steps to ensure that lawyer's conduct conforms to the Rules, which the opinion says can include closer supervision, requiring an evaluation, limiting the lawyer's matters, or determining that the lawyer must withdraw under Rule 1.16(a)(2). The opinion concludes a written impairment policy is not required but recommends procedures that encourage reporting without reprisal.
The opinion concludes that any lawyer who knows the impaired lawyer has committed a violation raising a substantial question of honesty, trustworthiness, or fitness must report under Rule 8.3 unless the report would reveal information protected by Rule 1.6 or other law, and that removing the lawyer from a matter or the lawyer's departure may require limited Rule 1.4 disclosure to affected clients, balanced against the lawyer's privacy rights under substantive law. Because the opinion predates later rule developments, verify the current D.C. rules before relying on specific requirements.
Common questions
Q: Does a lawyer's impairment excuse a failure to represent a client competently?
A: No. The opinion concludes, following ABA Opinion 03-429, that impaired lawyers have the same obligations as other lawyers, and that Rule 1.16(a)(2) requires withdrawal when the lawyer's condition materially impairs the ability to represent the client.
Q: What must partners or supervisors do about an impaired colleague?
A: The opinion concludes Rule 5.1 requires reasonable efforts to ensure the lawyer's conduct conforms to the Rules, which may include speaking with the lawyer, requiring an evaluation, referring the lawyer to the Lawyer Assistance Program, limiting the lawyer's duties, or supervising the work.
Q: Do I have to report an impaired lawyer to disciplinary authorities?
A: The opinion concludes Rule 8.3 requires a report when you know the lawyer has committed a violation that raises a substantial question as to honesty, trustworthiness, or fitness, unless the report would disclose information protected by Rule 1.6 or other law; reliance on someone else reporting does not discharge the duty.
Q: Does the firm have to tell clients that a lawyer is impaired?
A: The opinion concludes the firm may owe clients enough material information under Rule 1.4 to make informed decisions, especially if the lawyer is removed from a matter or leaves, but should disclose only necessary facts and may not need to reveal the nature of the impairment, balancing truthful disclosure against the lawyer's privacy rights.
Q: Is a written impairment policy required?
A: The opinion concludes a written policy is not required under Rule 5.1, though whether one is appropriate depends on firm size and structure, and firms may adopt one for consistency and to encourage reporting.
Background and rules framework
The opinion interprets D.C. Rule 5.1 (responsibilities of partners and managerial and supervisory lawyers), Rule 5.2 (subordinate lawyers) and Rule 5.3 (nonlawyer assistants), Rule 8.3 (reporting professional misconduct) and its Rule 1.6 limit, Rule 1.16(a)(2) (withdrawal for impairing condition), Rule 1.4 (communication with clients), and the competence and diligence duties of Rules 1.1 and 1.3, together with Rule 8.4. It supplements D.C. Opinion 246 and adopts the framework of ABA Formal Opinions 03-429 and Philadelphia Bar Opinion 2000-12.
Citations and references
Rules of Professional Conduct:
- D.C. RPC 5.1, 5.2, 5.3 / Model Rules 5.1, 5.2, 5.3 (supervisory and subordinate duties; nonlawyer assistants)
- D.C. RPC 8.3 / Model Rule 8.3 (reporting misconduct; Rule 1.6 limit)
- D.C. RPC 1.16(a)(2) / Model Rule 1.16 (withdrawal for an impairing condition)
- D.C. RPC 1.4 / Model Rule 1.4 (communication with clients)
- D.C. RPC 1.1, 1.3, 1.6, 8.4 / Model Rules 1.1, 1.3, 1.6, 8.4 (competence; diligence; confidentiality; misconduct)
Other opinions cited:
- ABA Formal Op. 03-429 (2003): obligations of a mentally impaired lawyer's firm
- D.C. Bar Legal Ethics Op. 246: four-part test for the Rule 8.3 reporting duty
- Philadelphia Bar Ass'n Op. 2000-12: duties when an impaired lawyer leaves the firm
See also
- ABA Formal Op. 03-429: Mentally Impaired Lawyer in the Firm
- ABA Formal Op. 03-431: Reporting an Impaired Lawyer Outside the Firm
- CA COPRAC Op. 2021-206: Lawyer Mental Impairment
- PA Bar Ethics Op. 2020-400: Duties on Lawyer Impairment
Source
- Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-377
Get today's answer for your situation
You just read a 2019 opinion on this question. Ezel checks the current rules of professional conduct in your state and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the rules it relies on.