Kansas Bar Journal
Vol. 74 No. 8.
Thinking Ethics: Your Obligation to Report Misconduct of Impaired Lawyers
Vol. 74 No. 8 September 2005Thinking Ethics: Your Obligation to Report Misconduct of Impaired LawyersBy Hon. Steve LebenIt had been a good week for your clients. First, the judge granted summary judgment to one client, based on the opposing lawyer's failure to respond to your request for admissions. Then a criminal defendant was acquitted when the prosecutor inexplicably failed to present evidence that the crime had occurred in the county. But neither situation felt quite right.
You had been in the first opposing lawyer's office shortly after filing the summary-judgment motion. He had asked for a meeting - and then begged you to withdraw the motion. He said that he had been depressed for months since his wife had left him. You noticed a stack of unopened mail on his desk and piles of disorganized papers throughout the office. You expressed sympathy, but said that your client's interests - make that your biggest client's interests - had to come first.
Then came the criminal trial. It wasn't a big case. Trial to the court took only an hour and was held just after lunch. The prosecutor had always done a good job before and anyone can make a mistake, you thought, but you also wondered if you had smelled alcohol on her breath.
Should a situation like one of these happen to you, you will need to consider whether you have an obligation to report the other attorney's conduct to the Kansas Disciplinary Administrator's office. Several rules must be considered to answer this question.
We begin with Rule 8.3(a), a rule unique to Kansas. While the ABA model rule requires only that attorneys report misconduct "that raises a substantial question" about another lawyer's honesty or fitness to practice law, the Kansas rule was amended in 1999 to require all lawyers to report "any action, inaction, or conduct which in the lawyer's opinion constitutes misconduct of an attorney."(fn1) This change has made a big difference with respect to the reporting of misconduct by an impaired lawyer. Under the ABA's model rule, you have no duty to report past misconduct if an attorney's impairment has since been alleviated. Under the model rule, the duty to report is triggered only by a current and substantial question about...