If a lawyer's depression or post-traumatic stress makes it hard to handle cases, must the lawyer withdraw, and can the cases go back to the former firm?

Plain-English summary

The Committee was asked two questions about a lawyer who, after leaving his former firm, found that diagnosed depression and post-traumatic stress symptoms made it difficult to complete the cases he had taken with him: whether he should continue with the cases or return them to the former firm, and whether he could face discipline if the former firm objected to the cases being returned.

The opinion concluded that the first question was the more important and was answered by Rule 1.16(a)(2), which requires a lawyer to withdraw where the lawyer's physical or mental condition materially impairs the ability to represent the client. On the facts presented, the lawyer reported he was under a psychiatrist's care and was having difficulty handling the cases in a diligent or competent manner, so the opinion concluded he must withdraw, and that continuing to handle the cases would violate the rules. Once he withdrew, the client would be free to retain other counsel, whether the former firm or someone else.

On the second question, the opinion concluded there was no way to insulate the lawyer from a bar complaint by the former firm or a client if a basis for one existed. The opinion recommended that the lawyer comply with Rule 1.16(d), which it quoted, by taking reasonably practicable steps to protect the client's interests on termination, including reasonable notice, allowing time to find other counsel, surrendering papers and property the client is entitled to, and refunding any unearned advance payment.

Currency note

This opinion was issued in 1995, interpreting the Mississippi Rules of Professional Conduct (adopted effective June 22, 1994, and amended February 5, 1999). Mississippi did not adopt the ABA's 2002 Ethics 2000 revisions wholesale, but subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Must a lawyer withdraw if a mental health condition impairs the representation?

A: Yes. The opinion concluded that Rule 1.16(a)(2) requires withdrawal where the lawyer's physical or mental condition materially impairs the ability to represent the client, and that continuing would violate the rules.

Q: After withdrawing, who can the client hire?

A: Per the opinion, once the lawyer withdraws the client is free to retain other counsel, whether the lawyer's former firm or someone else.

Q: Does withdrawing protect the lawyer from a bar complaint?

A: No. The opinion concluded it could not give an answer insulating the lawyer from a complaint by the former firm or a client if a basis for one existed.

Q: What steps does the lawyer owe the client on withdrawing?

A: The opinion pointed to Rule 1.16(d): take reasonably practicable steps to protect the client's interests, including reasonable notice, time to find other counsel, surrendering papers and property the client is entitled to, and refunding any unearned advance payment.

Background and rules framework

The opinion applies Mississippi Rule of Professional Conduct 1.16 (declining or terminating representation), specifically 1.16(a)(2) (mandatory withdrawal for an impairing physical or mental condition) and 1.16(d) (steps to protect the client on termination), which correspond to Model Rule 1.16.

Citations and references

Rules of Professional Conduct (Mississippi; cf. Model Rules):

• MRPC 1.16(a)(2) (mandatory withdrawal where a physical or mental condition materially impairs the representation) (cf. Model Rule 1.16)
• MRPC 1.16(d) (steps to protect a client's interests on termination) (cf. Model Rule 1.16)

See also

• MS Bar Ethics Op. 234: Receipts for Client Files
• VA LEO 977: Reporting a Lawyer's Cocaine Admission
• NY State Bar Op. 531: Rehab Committee, Duty to Report

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/227/
• Original PDF: https://www.msbar.org/media/1471/35a_et_op_227.pdf

Original opinion text

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

ETHICS OPINION NO. 227

OF THE MISSISSIPPI BAR

RENDERED April 10, 1995

DECLINING OR TERMINATING REPRESENTATION--A lawyer should withdraw from representing a client where the lawyer's mental condition impairs the lawyer's ability to represent the client.

The Ethics Committee of the Mississippi Bar has been requested to render an opinion on the following questions:

1. Where an attorney suffers from depression and post-traumatic stress symptoms (as diagnosed by his psychiatrist) that make it difficult to complete cases he took with him after leaving his former law firm, should the attorney continue with the cases or return them to his former law firm?

2. If the cases are returned to the former law firm, can the attorney be subjected to disciplinary proceedings if his former law firm objects to the cases being returned?

The Ethics Committee is of the opinion that the first question is the more important one, and the answer to it is provided by Rule 1.16 (a)(2) of the Mississippi Rules of Professional Conduct. That rule states (in pertinent part):

(a) *** ... a lawyer shall not represent a client or, where representation has commenced, shall withdraw from representation of a client if:

(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client.

In the facts presented, the attorney states that he has been diagnosed as being depressed and suffering from post-traumatic stress symptoms. The attorney states that he is under the care of a psychiatrist and that he is having difficulty completing the cases he took from his former law firm in a "diligent or competent manner."

Clearly, the attorney must withdraw from the cases. It is a violation of the MRPC for him to continue to handle the cases given the facts he has presented.

Once the attorney withdraws from the case, the client is free to retain other counsel, whether it be the attorney's former law firm or someone else.

As for the second question, there is no way for the Ethics Committee to give an answer which will insulate the attorney from a bar complaint, either by his former law firm or one of his clients (if the former law firm or the client has a basis for a complaint).

The Committee does recommend, however, that the attorney take care to comply with Rule 1.16(d), which provides:

(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interest, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.