SC Lawyer, Sept. 2003, #4. Ethics Watch September 2003 Dealing with impaired lawyers.

AuthorBy John Freeman

South Carolina Lawyer


SC Lawyer, Sept. 2003, #4.

Ethics Watch September 2003 Dealing with impaired lawyers

South Carolina LawyerSeptember 2003Ethics Watch September 2003 Dealing with impaired lawyersBy John FreemanOn June 11, 2003, the ABA's Standing Committee on Ethics and Professional Responsibility took a long overdue step when it issued Formal Ethics Opinion No. 03-429, "Obligations with Respect to Mentally Impaired Lawyer in the Firm." The opinion's text is available on Westlaw in the ABA-ETHOP database. To find it, use 03-429 as your search term.

Opinion 03-429 focuses on mental impairment of the sort that can arise from the onset of Alzheimer's Disease or, more commonly, mental impairment resulting from alcoholism and substance abuse. These latter two problems, the opinion pointedly noted, are twice as common among lawyers as the general population. Id. at 1, n.2.

Opinion 03-429 offers valuable guidance to lawyers forced to cope with brother and sister lawyers operating under a disability. Collected below are specific bits of guidance offered by the ABA ethics group:

* From a disciplinary enforcement standpoint, "[i]mpaired lawyers have the same obligations as other lawyers." "[M]ental impairment does not lessen a lawyer's obligation to provide . . . competent representation." The opinion expressly disclaims any attempt to deal with issues that could crop up under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. or similar state laws.

* Lawyers need to take note that ethics Rule 1.16 specifically bars lawyers from handling legal matters if mental impairment will materially hinder performance.

* Impairment is an ever-present risk. Lawyers who have "good days" and "bad days" may need to leave practice where "episodes of impairment have an appreciable likelihood of recurring." In such cases, lawyers charged with supervisory responsibility under Rule 5.1 have the unpleasant task of seeing that the impaired lawyer stops practicing.

* Lawyers called on to make judgments about their colleagues' possible impairment are well advised to consult with a mental health professional. In some instances, impaired lawyers' needs can be accommodated. For example, a lawyer who is unable to handle jury trial pressure may be an excellent appellate brief-writer; a lawyer who cannot handle deadlines may be able...

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