Must a Missouri lawyer report opposing counsel who appears intoxicated and impaired?

Plain-English summary

Knowledge means actual knowledge, which may be inferred from slurred speech, memory problems, and the smell of alcohol. Intoxication during representation impairs Rule 4-1.1 competence and raises a substantial fitness question.

An alternative reasonable explanation may keep suspicion below actual knowledge. Rule 4-1.6 requires the reporting lawyer's client consent for disclosure tied to the representation. A report by someone else does not eliminate the lawyer's own mandatory duty.

In practice

Under this opinion, knowledge and confidentiality are separate gates. Both must be addressed before the report required by Rule 4-8.3.

Common questions

Q: Is suspicion enough? A: No.

Q: Is client consent required? A: Yes for representation-related information.

Q: Does another report discharge the duty? A: No.

Background and rules framework

Rules 4-1.0(f), 4-1.1, 4-1.6, and 4-8.3 govern knowledge, competence, confidentiality, and reporting.

Citations and references

• Missouri Rules 4-1.0(f), 4-1.1, 4-1.6, and 4-8.3

See also

• ABA Formal Op. 03-431: Reporting an Impaired Lawyer
• Missouri Informal Op. 2020-29: Medical Condition and Withdrawal

Source

• Landing page: Missouri Informal Opinion 2018-07

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Question: Does Attorney have an obligation to report opposing counsel to the Office of Chief Disciplinary Counsel (OCDC), where Attorney and opposing counsel had phone conversations about the representation during which opposing counsel had slurred speech and exhibited significant memory problems, where opposing counsel made a court appearance a few hours later smelling strongly of alcohol, and where Attorney knows another person has reported opposing counsel’s conduct to OCDC?

Answer: Rule 4–8.3 requires Attorney to report opposing counsel to OCDC if Attorney “knows” opposing counsel was under the influence of alcohol while representing a client and if Attorney has the informed consent of his or her own client to disclose information related to the representation as required by Rule 4–1.6. Rule 4–1.0(f) defines “knows” as “actual knowledge of the fact in question,” and actual knowledge may be inferred from circumstances. An attorney’s duty per Rule 4–1.1 to provide competent representation to a client is impaired if attorney is intoxicated while engaging in activities related to the representation. The violation raises a substantial question as to the attorney’s honesty, trustworthiness, or fitness as a lawyer in other respects. If Attorney’s suspicions do not rise to the level of actual knowledge, including if Attorney reasonably believes the behavior of opposing counsel may have an alternative explanation, then Attorney is not obligated by Rule 4–8.3 to report opposing counsel. If the report is mandatory under the circumstances, a similar report to OCDC by another attorney or judge does not eliminate Attorney’s duty to report under Rule 4–8.3.