Attorneys experience problematic drinking, drug use and mental health distress at a higher rate than other professionals. As the holiday season shifts into high gear, take a moment to check in on your mental and emotional well-being and—while you are at it—check up on your partners and colleagues also. It’s not just a good idea, it is also part of your obligation as an attorney. Whether an impaired attorney is in your firm, beside you as co-counsel on a case, or even opposing you in a matter, your awareness of that impairment implicates several of the Rules of Professional Conduct. In response to this issue, in October, the District of Columbia Bar issued Ethics Opinion 377. This opinion provides advice on how to address your ethical obligations when dealing with an attorney whose illness or addiction is negatively affecting the lawyer’s ability to provide competent and diligent representation.
As Opinion 377 recognizes at the outset, ethics rules are only one set of regulations that apply in the context of an employee or partner who is suffering from a mental or physical impairment; the Rules of Professional Conduct must also be viewed in the context of a substantive body of law governing privacy and other rights. Notwithstanding this substantive law, the opinion addresses three questions:
- What is the duty of partners or supervisory lawyers who believe that another lawyer is suffering from a significant impairment?
- When is an attorney required to report another attorney to the Disciplinary Board based on a perceived impairment?
- What duties does a firm have if a lawyer with a significant impairment leaves the firm?
As to the first issue, Rule 5.1(a) states that “a partner in a law firm, and a lawyer who … possesses comparable managerial authority … shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.” (It is worth noting that an in-house department of a corporation or other organization is included in the term “firm.” See Rule 1.0 (c).) Rule 5.1 (c) provides for vicarious liability for another lawyer’s misconduct if the lawyer “knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.” As is often the case, the rules lack specificity on what are the “reasonable efforts” that will provide “reasonable assurance” that all lawyers will follow the rules. However, no matter how small your firm or department may be, a written policy will be useful here; the policy can provide for an anonymous reporting mechanism as well as what steps the firm will take to ascertain whether an impairment exists and how to address it, including a requirement for appropriate remediation of the issue. The goal of a written policy is twofold: first, to provide consistency in the handling of a difficult situation; and second, to create a culture where both reporting problems and providing support for mental health issues are equally encouraged. It is critical that subordinate lawyers and staff understand that reporting an issue will not lead to retaliation or other negative consequences. It is also critical that the firm provide an environment where an attorney suffering from the anxiety, or other illness, that can often accompany our stressful practices will find solace and help.
Depending on the seriousness of the issue, a firm may decide that a lawyer should withdraw from a representation under Rule 1.16 (a)(2) because “the lawyer’s … mental condition materially impairs the lawyer’s ability to represent the client.” If this occurs, or even if the lawyer’s participation in a matter is merely curtailed, there may be a need to advise the client of a change in the handling of the matter, pursuant to Rule 1.4’s requirement that clients be kept reasonably informed of the status of their case. According to Opinion 377, “the circumstances surrounding the removal … may be material to the representation and therefore, need to be disclosed …” On the other hand, such disclosure may violate the impaired lawyer’s privacy or other legal rights and should be made with great caution and in the least intrusive way possible. The fact of a lawyer’s removal from the matter will often be enough information to provide to a client, rather than the facts relating to the underlying cause.
Turning to the second question: when is the duty to report triggered? Under Rule 8.3, if the factors listed in the rule apply, the duty to report is mandatory, not discretionary. Rule 8.3(a) requires a “lawyer who knows that another lawyer has committed a violation of the rules … that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.” However, the rule “does not require disclosure of information otherwise protected by Rule 1.6 …” If one lawyer in a firm reports the impaired lawyer, this relieves the other lawyers of the obligation to also report.
Finally, what is a firm’s obligation when an impaired lawyer leaves the firm? On this issue, the DC Bar relies on an ethics opinion issued by the Philadelphia Bar Association, Opinion 2000-12. Opinion 2000-12 suggested “a direct approach” by appealing to the impaired lawyer not to solicit firm clients. If this fails, there may be an obligation to inform the clients to the extent reasonably necessary to permit their informed decisions of whether to follow the impaired lawyer. However, this communication must include only the demonstrable, proven facts in order to protect the firm from liability. Further, no joint letter from the firm and the impaired attorney advising the clients of the impending departure should be sent: this could create an appearance that the firm is endorsing the impaired attorney’s services. Finally, it may be that the impaired lawyer’s insistence on continuing to represent clients triggers the mandatory reporting requirement under Rule 8.3.
The holiday season is a time that can heighten and highlight the difficulties that may be interfering with our ability to represent our clients and lead healthy and well-balanced lives. Our profession is improving in its awareness of these issues and in its understanding of how to help and support colleagues that are suffering from substance abuse or other mental issues. This holiday season extend a hand to someone who looks like they might need help. And if you need help—it’s there for you: just call Lawyers Concerned for Lawyers—any day—any time. The confidential hotline number is 1-888-999-1941 and they are waiting for your call.
Ellen C. Brotman, of BrotmanLaw in Philadelphia, represents individuals before licensing boards, providing effective, caring and efficient assistance. She has served as an assistant federal defender in Philadelphia and practiced in small, medium and large firms with a focus on criminal defense, appellate advocacy, professional responsibility and ethics.
Reprinted with permission from the November 29, 2019 issue of The Legal Intelligencer. © 2019 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
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