THE IMPAIRED LAWYER

 

By Phillip E. Johnson, Esq.

 

            Suppose you are the managing partner of a law firm.  One morning, a prized associate, Mary, appears at your door and asks to speak with you in confidence about one of your partners, John.  She tells you that she suspects that John has a drinking problem.  On many occasions, she has smelled alcohol on his breath in the afternoon.  She has noticed the last several months that John has been very disorganized, and she thinks that his cases may be suffering as a result.  She discloses that John has missed several client appointments and has even failed to show up at two court matters, one a motion hearing and the other a pretrial conference.  Fortunately, since she co-chairs most of John’s cases, she has been able to cover for him and there have been no adverse consequences, at least not yet.  She is concerned, however, that she may not always be able to there to fill in for John.

            You had already sensed that there might be a problem.  John has been going through a difficult divorce, and he has not seemed like his usual self.  Although you have given John a great deal of moral support, you have always been reluctant to start questioning his work.   John is a well-respected lawyer, and you don’t know much about his litigation practice anyway, except for the fact that he brings a lot of fees in the door.  He is your partner and friend, and you don’t want to appear like you are prying into his work when he already has so much stress in his life.

            Now there is confirmation of the problem you feared, however, plus clear signs that it is serious enough to be affecting John’s work.  You think about possible legal malpractice.  You wonder about the firm’s legal obligations to John and whether the firm has to accommodate a disability.  Then Mary adds an additional plaguing thought.  She suggests that you must assess and carry out the firm’s ethical responsibilities posed by these circumstances.

            So what are the firm’s responsibilities, or more accurately, your responsibilities as a partner in the firm?

 

            Maine Bar Rule 3.13(a)(1) states that a partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the conduct of all lawyers in the firm conforms to the Code of Professional Responsibility.  So even though you don’t work with John or have any direct supervisory authority over him, you have an obligation to take steps to ensure that John is fulfilling his ethical obligations under the Code.  In addition, under Rule 3.13(a)(3), you have potential responsibility for his ethical violations if you ratify his conduct or if you know of his conduct at a time when its consequences can be avoided or mitigated, but you fail to take remedial action.

            Making reasonable efforts giving reasonable assurance is fine in theory, but realistically, what are you supposed to do in John’s case?  Fortunately, there is an ABA ethics opinion that gives you some more concrete guidance.

 

            Formal Opinion 03-429 (June 11, 2003) addresses the obligations of lawyers under ABA Model Rule 5.1, which is the exact equivalent of Maine Bar Rule 3.13, with respect to mentally impaired lawyers.  The opinion offers the following advice:

·        Impaired lawyers have the same obligations under the ethics rules as other lawyers.  Mental impairment does not lessen a lawyer’s obligation to provide clients with competent representation.

·        A lawyer suffering from mental impairment may be unaware of, or in denial of, the fact that the impairment has affected his ability to represent clients.  When an impaired lawyer is unable or unwilling to deal with the consequences of his impairment, the firm’s partners and the impaired lawyer’s supervisors have an obligation to take steps to assure the impaired lawyer’s compliance with the ethics rules.

·        The firm’s paramount obligation is to protect the interests of its clients. Its first step may be to confront the lawyer with the fact of his impairment and to insist upon steps to assure that clients are properly represented, notwithstanding the impairment.  Other steps may include forcefully urging the impaired lawyer to accept assistance to prevent future violations or limiting the ability of the impaired lawyer to handle legal matters or deal with clients.  

·        Some impairments may be accommodated by removing the lawyer from tasks that are under strict deadlines or other pressures.  For example, the lawyer might be removed from jury trials and assigned to legal research and writing projects.  

·        Depending on the nature, severity and permanence (or likelihood of periodic recurrence) of the lawyer’s impairment, management of the firm has an obligation to supervise the legal services performed by the lawyer and, when necessary, prevent the lawyer from rendering legal services to clients.

·        Lawyers may have an obligation to report violations of the ethics rule to disciplinary authorities if there is a substantial question as to the individual’s honesty, trustworthiness or fitness as a lawyer.  If the mental condition has ended, there is no duty to report.  If the firm is able to eliminate the risk of future violations, there is no duty to report.  If, on the other hand, the lawyer’s impairment renders him unable to represent clients competently and if the lawyer nevertheless continues to practice, then partners or supervising lawyers must report the violation, unless they can otherwise take steps to bring the matter under control.

·        If the matter on which the impaired lawyer violated his duty to act competently is still pending, the firm may not simply remove the impaired lawyer and select a new lawyer to handle the matter.  The firm may have a responsibility to discuss with the client the circumstances surrounding the change in responsibility.  

·        Responsibilities of the firm to the client do not necessarily end with the lawyer’s resignation or termination.  For example, as to clients faced with the decision whether to follow the lawyer into his new practice or remain with the firm, there may be an obligation to advise existing clients of the facts surrounding the withdrawal to the extent disclosure is reasonably necessary for those clients to make an informed decision about the selection of counsel.  

 

            Besides discharging the firm’s ethical responsibilities, John still needs help with his drinking problem.  An important resource for that help might be the Maine Assistance Program for Lawyers and Judges (MAP).  MAP became operative in May 2003.   Through the remainder of that year, MAP assisted more than 70 lawyers with mental health and substance abuse issues.  When a lawyer is referred to MAP, a volunteer quickly responds to assist in an approach to the problem, coupled with a supportive environment for the impaired lawyer and his or her family.  The rules governing MAP provide for confidentiality.  Rule 8 states that information and actions shall be "privileged and held in strictest confidence and shall not be disclosed or required to be disclosed to any person or entity outside of MAP," except in limited circumstances.  Moreover, information and actions taken by MAP are to be excluded as evidence in any proceeding before the Board of Overseers of the Bar. 

 

            The impaired lawyer poses a complex problem for the law firm.  Impairment can arise from alcoholism, drug addiction, depression or other psychological problems, senility or Alzheimer’s disease, and a host of other causes.  The situation is likely to produce concerns about malpractice liability as well as the firm’s legal responsibility to the impaired lawyer.  The firm must also be aware of its ethical responsibilities under Rule 3.13 and take steps to ensure that the impaired lawyer does not fail to fulfill his responsibilities under the Code of Professional Responsibility.  ABA Formal Opinion 03-429 offers guidance to law firms on what they should do to fulfill their responsibility.  And the Maine Assistance Program for Lawyers and Judges is an important source of help for the impaired lawyer.