SC Lawyer, Jan. 2004, #4. Ethics Watch January 2004 Turning in impaired lawyers for misconduct.

• Author: By John Freeman

South Carolina Lawyer

2004.

SC Lawyer, Jan. 2004, #4.

Ethics Watch January 2004 Turning in impaired lawyers for misconduct

South Carolina LawyerJanuary 2004 Ethics Watch January 2004 Turning in impaired lawyers for misconductBy John FreemanThe data are unequivocal - alcoholism and drug abuse present the legal profession with a serious ethics problem. A majority of lawyer misconduct cases stem from some form of impairment on the respondent's part, typically alcoholism or drug abuse.

Consider the following findings - BENJAMIN SELLS, THE SOUL OF THE LAW 17 (1994) (substance abuse estimated to be tied to 70 percent of complaints against lawyers); Charles J. Santangelo & Donald W. Morrison, Alcohol Abuse on the Rise Among Lawyers, 209 N.Y.L.J. 5, 5 (1993) (claiming that in New York and California, 50 to 70 percent of all complaints against lawyers involve alcohol abuse); ABA Commission on Impaired Attorneys, An Overview of Lawyer Assistance Programs in the United States 1 (1991) (estimating that 40 to 75 percent of disciplinary complaints stem from alcohol, drugs or mental health problems); Muchogrosso, Oregon State Bar Professional Liability Fund, Profile of Legal Malpractice - A Statistical Study of the Determinative Characteristics of the Lawyers' Professional Liability Fund (May 1981) (reporting that of 100 lawyers who entered Oregon's lawyer assistance program for alcohol or drug abuse therapy, 61 percent had disciplinary complaints and 60 percent had malpractice suits pending against them). Lawyers are recognized to suffer from alcoholism and substance abuse at a rate at least twice as high as the general population. See George Edward Baily, Impairment, The Profession and Your Law Partner, 11 No. 1 Prof. Law. 2 (1999).

In the face of overwhelming evidence linking lawyer impairment and ethical misconduct, the organized bar has started to speak openly about the ethical problems impairment presents. The September 2003 Ethics Watch column discussed ABA Formal Ethics Opinion 03-429 issued in June of 2003. That opinion addressed the important issues of the obligations owed by a firm's lawyers when one of the firm's lawyers violates the Rules of Professional Conduct due to mental impairment.

This column deals with ABA Formal Ethics Opinion 03-431, which was issued in August and serves as a sequel to Opinion 03-429. Opinion 03-431 considers lawyers' duty to report other members of the bar, outside the firm in which we practice, when a mental condition (such as alcoholism, drug addition, senility or mental illness) impairs the lawyer's ability to effectively represent a client. This is a thorny professional relationship problem that many lawyers are apt to encounter if they practice long enough. Opinion 03-431 offers practical tips on various aspects of the unpleasant impairment-reporting task. Key bits of guidance are cataloged below.

How is impairment manifested? The panel noted that, in general, impaired lawyers will call attention to themselves by engaging in a pattern of misbehavior, such as by missing deadlines, failing to make filings needed to complete a transaction, breaching promises to accomplish certain tasks or failing to raise arguments that a reasonable lawyer would make. However, the panel also noted that "[a] single act of aberrant behavior" may provide sufficient grounds to report the lawyer since some patterns of misconduct are evident only when uncovered by a disciplinary investigation.

How can impairment be unethical?

Given that impairment is at the root of so much misconduct, practically any form or unethical behavior may be linked in some way to alcoholism, drug abuse or mental impairment. The opinion trains its sights on a crucial ethical failing that arises when a lawyer suffers from some form of disability that materially impairs the lawyer's ability to practice. In such a case, Rule 1.16(a)(2) requires withdrawal. Because Rule 1.16(a)(2) is targeted at protecting clients, as well as the legal system's integrity, ordinarily an impaired lawyer's failure to withdraw will constitute a reportable event under Rule 8.3. Indeed, the main message found in 03-429 is that lawyers must aggressively step up and report impairment, subject to a major qualification.

Client consent may be needed

A major qualification to the mandatory reporting requirement arises if the information about the impaired lawyer comes to you through interaction in the course of representing a client: "the reporting lawyer should obtain the client's informed consent to the disclosure." This means that the client's go-ahead, after being briefed on the likely consequences of reporting, is an essential condition precedent to filing a grievance today. This client consent mandate is found in Rule 8.3(c). There was no express duty of client consultation and consent in advance of filing a grievance under the old, superceded Code of Professional Responsibility reporting provision, DR 1-103.

Is there a pre-reporting duty to consult with the offending lawyer? There is no requirement that the lawyer facing a reporting requirement must consult with the impaired lawyer or members of the impaired lawyer's firm before reporting. Though the ABA panel found "there is no affirmative obligation to speak either with the affected lawyer or her firm about her conduct or condition before reporting," the opinion counseled that "the lawyer should consider speaking with the firm's partners or supervising lawyers." It went on to note that if the firm took prompt action and provided assurance "that the affected lawyer is not representing clients while materially impaired," then "there is no obligation to report the lawyer for breaching Rule 1.16(a)(2) by failing to withdraw."

When in doubt, do what?

Seeing a lawyer drunk "in social settings" is not enough to trigger a reporting requirement. "A lawyer must know that the condition is materially impairing the affected lawyer's representation of clients." In other words, for the reporting duty to click in under Rule 8.3, the apparently impaired lawyer's conduct must raise a substantial question about the lawyer's fitness to practice. For help in assessing whether the reporting requirement is triggered, the opinion suggests "a lawyer might consider consulting with a . . . mental health care professional about the significance of the conduct observed or of information the lawyer has learned from third parties" (such as a client who is complaining of the impaired lawyer's conduct).

Other alternatives mentioned include consulting with a lawyer assistance program such as the Bar's Lawyers Helping Lawyers Program. Simply phone 866-545-0590 or call one of the lawyers listed in the ad on the inside back cover of this issue. Another option is speaking directly with the affected lawyer about past conduct raising impairment questions. On taking this latter course the opinion warns: "Care must be taken when acting on the affected lawyer's denials or assertions that the problem has been resolved. It is the knowledge of the impaired conduct that provides the basis for the lawyer's obligations under Rule 8.3; the affected lawyer's denials alone do not make the lawyer's knowledge non-reportable under Rule 8.3."

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