By Lazar Emanuel [Originally published in NYPRR October 2003]
In Formal Opinion 03-429 (June 11, 2003), the ABA considered the obligations of a law firm when a member of the firm is or becomes mentally impaired. The measure of the firm’s obligations is how well the lawyer and/or the law firm are able to comply with the Model Rules relating to competent representation of the client.
The opinion by its terms deals only with mental impairment, both temporary and permanent. Physical impairment is relevant only if it results in mental impairment. Mental impairment can be caused by Alzheimer’s Disease and other age-related mental conditions or by alcoholism or substance abuse. (The Opinion noted that lawyers are prone to substance abuse at a rate at least twice that of the general population.) Some conditions (e.g., Tourette’s Syndrome) may cause conduct that is overtly erratic but that does not interfere with the lawyer’s ability to render competent representation.
Impaired lawyers have no less an obligation to the client than any other lawyer. They may not fail to represent the client with diligence and promptness and they may not fail to communicate with the client in an appropriate manner. MR 1.16 enjoins a lawyer from representing a client if “the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client…”
Problems are caused when an impaired lawyer is not aware of his disability or refuses to acknowledge it. Problems also arise when the impairment is sporadic or fluctuates over time.
Certain dementia or psychoses may impair a lawyer’s performance on “bad days” but not on “good days” during which the lawyer behaves normally. Substance abusers may be able to provide competent and diligent representation during sober or clean interludes, but may be unable to do so during short or extended periods in which the abuse recurs. If such episodes of impairment have an appreciable likelihood of recurring, lawyers who manage or supervise the impaired lawyer may have to conclude that the lawyer’s ability to represent clients is materially impaired.
A law firm’s paramount obligation is to take steps to ensure the interests of its clients. Under MR 5.1(a) all partners in a law firm and all lawyers with direct supervisory authority over another lawyer are required to make reasonable efforts to establish policies and procedures that encourage compliance with the Model Rules. “The measures required depend on the firm’s size and the nature of its practice.”
When a partner or a supervising lawyer is confronted with a lawyer’s mental impairment, the first step may be to confront the lawyer and insist upon steps that will assure that the impairment does not prejudice the interests of any client. These steps may include insisting that the lawyer accept assistance, restricting the lawyer from handling certain matters, or preventing the lawyer from dealing directly with clients.
If possible without injury to the client, the mental impairment may be accommodated. For example, a lawyer who is unable to meet deadlines or to work under pressure may be assigned unpressured research. A lawyer who is unable to handle a jury trial or a hostile takeover competently may be competent to draft transaction documents. Depending on the severity of the impairment, the law firm has an obligation to supervise the lawyer’s performance. In an appropriate case, this may include preventing the lawyer from rendering legal services to clients of the firm.
If reasonable efforts have been made to institute procedures designed to assure compliance with the Model Rules, neither the partners in the firm nor the lawyer with direct supervisory authority are responsible for the impaired lawyer’s violation of the rules unless they knew of the conduct at a time when its consequences could have been avoided or mitigated and failed to take reasonable remedial action.
Firm’s Responsibilities to Report Rules Violation
What are the obligations of a law firm or a supervisory lawyer when the mental impairment of a lawyer results in a violation of the Model Rules? Under MR 8.3(a), partners in the firm and supervisory lawyers are required to report violations that raise “a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer.”
Before a report is made, judgment must be exercised to deter- mine whether the violation is one that “a self-regulatory profession must vigorously endeavor to prevent.” In some instances, the reporting lawyer need report only the violation which has occurred, without disclosing the cause, but in most cases, disclosure of the impairment will be appropriate.
If the mental condition that caused the violation has ended, no report is required. If the lawyer has resolved a psychiatric condition that caused temporary impairment, no report is required. “Similarly, if the firm is able to eliminate the risk of future violations of the duties of competence and diligence under the Model Rules through close supervision of the lawyer’s work,” no report is required. But the partners and supervising lawyers have an affirmative obligation to report the violation if the lawyer’s impairment continues to make him unable to represent clients competently and diligently.
If the matter which manifested the violation is still pending, the law firm must do more than simply remove the impaired lawyer and substitute another lawyer. Under MR 1.4(b), the firm may have an obligation to discuss the change in lawyers with the client in candor. At the same time, the firm should preserve the privacy rights of the impaired lawyer. Even if the matter in which the violation occurred is no longer pending, the firm may have an obligation to mitigate “any adverse consequences of the violation.”
What are the continuing obligations of the law firm if the impaired lawyer resigns or is terminated by the firm? Clients of the firm may wish help in deciding whether to shift their representation to the impaired lawyer. MR 1.4 requires a lawyer to explain a matter to the extent necessary to permit the client “to make informed decisions regarding the representation.” This would require the law firm to advise its existing clients of the lawyer’s withdrawal to the extent it deemed the advice reasonably necessary to prevent prejudice to the clients. “In doing so, the firm must be careful to limit any statements made to ones for which there is a reasonable factual foundation.”
If a client has already shifted his loyalty to the departing impaired lawyer, the law firm has no obligation to advise the client of the impairment or that it believes the lawyer is unable to handle the client’s matters competently. But the firm should avoid any act that may be construed as an endorsement of the lawyer’s ability to handle matters competently. For example, the law firm should refrain from sending the client a joint letter announcing the lawyer’s departure.
The law firm should consider whether it has an obligation to report the departed lawyer’s impairment to the disciplinary authorities to prevent his representation of clients. No obligation arises [under MR 8.3(a)] unless the impairment has resulted in a violation of the Model Rules. “Thus, if the firm reasonably believes that it has succeeded in preventing the lawyer’s impairment from causing a violation of a duty to the client by applying the necessary support and supervision, there would be no duty to report…”
But, subject to the constraints against disclosures protected by MR 1.6, partners in the firm may voluntarily report to the authorities their concern that the departing lawyer will not be able to perform competently without adequate supervision and support.
Lazar Emanuel is the Publisher of NYPRR.
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