Kansas Bar Journal
Vol. 73 No. 3.
Thinking Ethics: ABA Opinion Details Duties of Firm When Lawyers Become Impaired
Vol. 73 No. 3 March 2004Thinking Ethics: ABA Opinion Details Duties of Firm When Lawyers Become ImpairedBy Don Zemites A partner or supervisor of a lawyer who becomes mentally impaired because of substance abuse or other conditions must not look the other way, according to the ABA Standing Committee on Ethics and Professional Responsibility, Formal Advisory Op. 03-429, 6/11/03.
When a partner or supervisor realizes the problem, they must take steps to prevent violations of the ABA Model Rules of Professional Conduct.
* Impairments from substance abuse afflict lawyers at a rate higher than most other professions. Mental conditions, such as depression and other age problems, are also higher.
* Model Rules prohibit lawyers from representing clients if their condition materially impairs their ability to handle the representation.
* Impaired lawyers often deny or ignore impairment.
Some examples of firm's responsibilities:
* Establish preventative policies and procedures to prevent violations.
* Take steps to ensure the impairment does not cause ethical violations, e.g., scrutinize the lawyer's work, intervene and help the lawyer find counseling, and restrict his/her handling of matters or meeting with clients.
* Protect clients' interests.
Reacting to lapses:
* When an ethical violation is discovered, the firm must act quickly to mitigate consequences.
* Failure to act may amount to ethical violation by partners.
* There is a possible obligation to disclose violation to clients (preserving lawyer's right to privacy) or when shifting and replacing lawyer.
* Violations that raise substantial questions as to lawyer's honesty, trustworthiness, or fitness as a lawyer must be reported. See also Formal Advisory Op. 03-431 (Lawyer's Duty to Report Rule Violations by Another Lawyer Who May Suffer From Disability or Impairment). Kansas' version of Model Rule 8.3 requires reporting of any conduct constituting "misconduct" in the reporting lawyer's opinion, excluding information discovered through participation in certain assistance programs.