If a lawyer learns that another lawyer he refers clients to is medically impaired and can no longer competently practice, must he report it and warn the referred clients?

Plain-English summary

The inquiry involved Attorney A, who had referred clients to Attorney B, and who came to know that Attorney B had developed a medical condition rendering him unable to practice with any material degree of competence. Attorney A asked whether Rule 8.3 required him to report Attorney B's impairment and whether he had to communicate his concerns to the referred clients.

On reporting, the committee explained that Rule 8.3(a) requires a lawyer who knows another lawyer has committed a violation raising a substantial question as to honesty, trustworthiness, or fitness to inform the appropriate authority. It tied the impairment to substantive violations: under Rule 1.16(a)(2) a lawyer must not represent (or must withdraw) where a physical or mental condition materially impairs his ability to represent the client, and Rule 1.1 requires competent representation. Citing its earlier Opinions 95-01 and 95-07 and Comment to Rule 8.3, the committee concluded reporting is mandatory only where the violations raise a substantial question of fitness; it rejected a narrow malpractice-only standard, noting even neglect can raise a fitness question, and that Rule 28 of the disciplinary rules makes incapacity a basis for action. Because accusing another lawyer is serious, Rule 8.3 requires actual knowledge or clear belief, more than suspicion, and the duty yields where the information is protected by Rule 1.6 (though the lawyer should encourage a client to consent to disclosure where there is no substantial prejudice).

On the duty to the clients, the committee concluded that because the referrals grew out of Attorney A's own representation of those clients, he is obligated to advise them of his conclusions and change of opinion, especially once his reservations about Attorney B's fitness reach the point where he is contemplating a report that could lead to disciplinary action or incapacity-inactive status. The committee noted this duty would not arise if the referral had not stemmed from an attorney-client relationship.

In practice

The committee concluded that, under the South Carolina rules as they stood at the time of the opinion, a lawyer who has actual knowledge that an impaired lawyer's condition is causing violations of Rules 1.1 and 1.16(a)(2) raising a substantial question of fitness must report to the appropriate professional authority under Rule 8.3, subject to the Rule 1.6 confidentiality limit, and may also meet with the impaired lawyer to encourage him to seek help. Where the referral arose from the lawyer's own representation of the clients, the lawyer must advise those clients of his changed assessment, particularly when he is contemplating a report.

Common questions

Q: Must a lawyer report another lawyer's medical impairment?

A: Yes, if the lawyer has actual knowledge that the impairment is causing violations of Rules 1.1 and 1.16(a)(2) that raise a substantial question of fitness; then Rule 8.3 requires a report to the appropriate authority, unless reporting would disclose Rule 1.6-protected information.

Q: How certain must the lawyer be before reporting?

A: The committee concluded Rule 8.3 requires actual knowledge or a clear belief that a violation occurred, which is more than a suspicion of misconduct.

Q: Does the lawyer have to warn the clients he referred to the impaired lawyer?

A: Yes, where the referral arose from the lawyer's own representation of those clients. The committee concluded the lawyer is obligated to advise them of his changed assessment, especially once he is contemplating a report.

Q: What if the knowledge came from a client?

A: The committee noted (per its Opinion 95-07) that the duty yields to Rule 1.6 confidentiality, but the lawyer should encourage the client to consent to disclosure if there would be no substantial prejudice.

Background and rules framework

The opinion interprets South Carolina RPC 8.3(a) (reporting professional misconduct), 1.1 (competence), 1.16(a)(2) (mandatory withdrawal for impairing condition), and 1.6 (confidentiality), corresponding to the like-numbered Model Rules. The committee relied on its earlier Opinions 95-01 and 95-07 and on Rule 28 of the Rules for Lawyer Disciplinary Enforcement (incapacity as a basis for action).

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 8.3(a) / Model Rule 8.3: reporting professional misconduct.
• South Carolina RPC 1.1, 1.16(a)(2), 1.6 / Model Rules 1.1, 1.16, 1.6: competence; withdrawal for impairing condition; confidentiality.

Other opinions cited:

• S.C. Bar Ethics Advisory Ops. 95-01 and 95-07 (scope of the Rule 8.3 reporting duty; confidentiality limit).
• Nassau County (N.Y.) Bar Ass'n Op. 02-02 (reporting ineptness of co-counsel to the client).

See also

• ABA Formal Op. 03-429: Mentally impaired lawyer in the firm

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-02-13/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 02-13

Attorney A has knowledge that Attorney B, to whom he has referred clients, has developed a medical condition which renders him unable to practice law with any material degree of competence.

QUESTIONS:
(1) Does Rule 8.3 require that the Attorney A report Attorney B's impairment to the appropriate professional authority?
(2) Does Attorney A have an obligation to communicate his concerns to clients referred to Attorney B?

SUMMARY OF OPINION
(1) If the Attorney A has knowledge that Attorney B has violated Rules 1.1 and 1.16 (a) (2) due to a medical condition materially impairing the attorney's ability to represent a client or clients, and the violations raise a substantial question as to Attorney B's fitness as a lawyer, Attorney A shall inform the appropriate professional authority, unless the reporting would disclose information protected by Rule 1.6.

(2) Since the referrals have evolved out of Attorney A's representation of his or her clients, Attorney A is obligated to advise clients concerning changes in his or her opinion, especially if Attorney A's reservations concerning the attorneys fitness have reached a level where Attorney A is contemplating reporting a violation, which could lead to disciplinary action regarding Attorney B's fitness or transfer to incapacity inactive status.

OPINION:
Rule 8.3 (a) of the Rules of Professional Conduct address the standards for reporting professional misconduct. The Rule states, "a lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to the lawyers honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate professional authority." Under Rule 1.16 (a) (2) a lawyer shall not represent a client, or where representation has commenced, shall withdraw from representation of a client if the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client. Rule 1.1 requires a lawyer to provide competent representation to a client.

Rule 8.3 requires that Attorney A make the following analysis to determine if reporting is mandatory. Rule 8.3 states that the lawyer is not obligated to report all violations of the rules of professional conduct. A report is mandatory only if the violation under Rules 1.1 and 1.16 (a) (2) raises a substantial question as to the lawyer's fitness as a lawyer in other respects. "This Rule limits the reporting obligation to those offenses that any self-regulating profession must vigorously endeavor to prevent." Comment 8.3. However, in our Opinion 95-01 we stated that if Rule 8.3 were construed narrowly to mandate only the reporting of violations that reflect upon the honesty or trustworthiness of the lawyer, that construction would render meaningless the additional reference to offenses that raise a question as to "fitness." One commentator, recognizing the ambiguity of Rule 8.3 , has suggested that the type of conduct that raises a substantial question as to fitness should be interrupted to mean conduct displaying "incompetence clearly amounting to malpractice." Gerard Lynch, The Lawyer as Informer, 1986 Duke L. J. 491, 539. The committee felt that a standard based on potential malpractice liability was too restricted. We believed, for example, that neglect of a client matter may be sufficient to raise a substantial question as to fitness, even though the neglect did not result in any actionable injury to the client. In addition, Rule 28 of the Rules for Lawyer Disciplinary Enforcement provides that mental or physical incapacity is a basis for disciplinary action.

Since accusing another lawyer of misconduct is a serious matter that should not be undertaken lightly, Rule 8.3 requires actual knowledge of, or believing clearly that there has been a violation, which implies more than a suspicion of misconduct. Our Opinion 95-07 raised a caveat when knowledge is gained from a client, since Rule 8.3 provides that the lawyer is not required under rule 8.3 to disclose information protected by Rule 1.6. Comments to the rule confirm this view. However, an attorney ought to encourage a client to consent to disclosure if there would be no substantial prejudice to the client.

If Attorney A has knowledge that Attorney B has violated Rules 1.1 and 1.16 (a) (2) due to a physical condition materially impairing the attorney's ability to represent a client or clients, and the violations raise a substantial question as to Attorney B's fitness as a lawyer, Attorney A should inform the appropriate professional authority, unless the reporting would disclose information protected by Rule 1.6. Attorney A could also meet with Attorney B and encourage him to seek professional help.

Does the Attorney A have an obligation to report his knowledge concerning Attorney B to his or her clients previously referred to the attorney? The attorney-client relationship involves both actions taken on behalf of the client, as well as opinions rendered to a client. The fact that the Attorney A's communication may interfere with the attorney-client relationship between clients and Attorney B does not under the Rules of Professional Conduct prohibit reporting attorney from communications with clients concerning changes in opinions rendered to them, but to the contrary would demand it. Since the referrals have evolved out of Attorney A's representation of his or her clients, Attorney A is obligated to advise those clients concerning his conclusions and change of opinion, especially if Attorney A 's substantial reservations concerning the Attorney B's fitness have reached a level where the Attorney A is contemplating reporting a violation, which could lead to disciplinary action regarding Attorney B's fitness. This would not be the case if the referral by Attorney A did not arise out of an attorney-client relationship. See the opinion concerning attorney's reporting on ineptness of co-counsel to client. See Nassau County N.Y. Bar Ass'n Comm. on Professional Ethics, Op. 02-02.