What are a Pennsylvania firm's duties when one of its lawyers is impaired by illness or addiction?

Plain-English summary

The opinion formally endorses D.C. Bar Ethics Opinion 377 (October 2019), which addresses ethical issues that arise when a lawyer's illness or addiction significantly impairs the ability to provide competent and diligent representation. The opinion notes that ethics rules are only one body of law in play, and must be read alongside substantive law governing privacy and other rights. It then organizes its analysis around the three questions Opinion 377 poses.

On the duty of partners and supervisory lawyers, the opinion applies Rule 5.1(a), under which partners and lawyers with comparable managerial authority must make reasonable efforts to ensure the firm has measures giving reasonable assurance that all lawyers conform to the Rules, and Rule 5.1(c) on responsibility for a subordinate's misconduct. The opinion observes that the Rules do not define what "reasonable efforts" require, and discusses a written policy with an anonymous reporting mechanism as one approach. It also notes that, depending on seriousness, a lawyer may need to withdraw under Rule 1.16(a)(2) because the lawyer's mental condition materially impairs the ability to represent the client, which will likely trigger a need to advise the client of the change under Rule 1.4(a)(3), while cautioning that disclosure of underlying circumstances may implicate the impaired lawyer's privacy rights and should be made in the least intrusive way.

On reporting, the opinion applies Rule 8.3: when a lawyer knows another has committed a violation that raises a substantial question about that lawyer's honesty, trustworthiness, or fitness, the duty to report to the appropriate professional authority is mandatory, not discretionary, subject to the Rule 1.6 exception for protected information; one lawyer's report relieves others in the firm of the duty. On a firm's obligations when an impaired lawyer leaves, the opinion follows Opinion 377's reliance on Philadelphia Bar Opinion 2000-12, discussing communication with clients under Rule 1.4 limited to demonstrable, proven facts, and noting that the impaired lawyer's insistence on continuing to represent clients may itself trigger mandatory reporting under Rule 8.3.

In practice

Under this opinion, a Pennsylvania firm confronting a colleague's significant impairment has duties at several points. The opinion concludes that managing and supervisory lawyers must make reasonable efforts under Rule 5.1; that an impaired lawyer whose condition materially impairs representation may need to withdraw under Rule 1.16(a)(2), with the client advised of the change under Rule 1.4(a)(3) in the least intrusive way consistent with the impaired lawyer's rights; and that Rule 8.3 makes reporting mandatory when the impairment causes a violation raising a substantial question about fitness, except for information protected by Rule 1.6.

Common questions

Q: If a partner is impaired, does the firm have to do something, or is it the partner's own problem?

A: The firm has duties. The opinion concludes that under Rule 5.1 partners and managers must make reasonable efforts to ensure the firm has measures giving reasonable assurance that all lawyers conform to the Rules.

Q: When does impairment require reporting to disciplinary authorities?

A: When it produces a qualifying violation. The opinion concludes Rule 8.3 makes reporting mandatory when a lawyer knows another has committed a violation that raises a substantial question about the lawyer's honesty, trustworthiness, or fitness, subject to the Rule 1.6 exception.

Q: What do we tell the client when an impaired lawyer is removed from a matter?

A: Enough to keep the client informed, with caution. The opinion concludes Rule 1.4(a)(3) requires advising the client of the change in handling, while disclosure of underlying circumstances should be made in the least intrusive way given the impaired lawyer's privacy and other rights; often the fact of removal is enough.

Background and rules framework

The opinion interprets Pennsylvania Rules of Professional Conduct 5.1 (responsibilities of partners, managers, and supervisory lawyers, including 5.1(a) and 5.1(c)), 1.16(a)(2) (mandatory withdrawal where the lawyer's mental condition materially impairs representation), 1.4(a)(3) (keeping clients reasonably informed), and 8.3 (reporting professional misconduct, with the 1.6 confidentiality exception). These track the ABA Model Rules of the same numbers. The opinion adopts the reasoning of D.C. Bar Opinion 377 and references Philadelphia Bar Opinion 2000-12.

Citations and references

Rules of Professional Conduct:

• Pa.R.P.C. 5.1, including 5.1(a) and 5.1(c); ABA Model Rule 5.1
• Pa.R.P.C. 1.16(a)(2); ABA Model Rule 1.16
• Pa.R.P.C. 1.4(a)(3); ABA Model Rule 1.4
• Pa.R.P.C. 8.3, 8.3(a), and Rule 1.6 exception; ABA Model Rule 8.3

Other opinions cited:

• D.C. Bar Ethics Op. 377 (Oct. 2019): duties when a lawyer is impaired (endorsed by this opinion)
• Philadelphia Bar Association Professional Guidance Committee Op. 2000-12: departing impaired lawyer and client solicitation
• PBA and Philadelphia Bar Joint Formal Op. 2007-300: communications on a lawyer's departure

See also

• CA COPRAC Op. 2021-206: Colleague Impairment
• ABA Formal Op. 467: Prosecutors' Managerial and Supervisory Obligations
• PA Bar Ethics Op. 2020-600: Ethical Issues With COVID Waivers

Source

• Landing page: PBA Ethics Opinions (Public)
• Original PDF: f2020-400.pdf