What should you do if you notice that one of your partners has become extremely forgetful, and you think it raises concerns about the partner’s ability to competently represent your firm’s clients? Do you have a duty, under your state’s version of Model Rule 8.3, to report those concerns to a disciplinary authority?
The Kansas Bar Association’s Ethics Advisory Committee recently discussed the issue in an ethics opinion.
The Committee concluded that unless the problem has resulted in an actual ethics violation, there is no duty to report. Rather, a lawyer observed to have memory lapses, cognitive deterioration or another potentially disabling condition should be referred to a lawyer assistance program.
The Kansas opinion was in response to an inquiry about a firm partner who apparently forgot how to dial in to a conference call, and who had to be repeatedly reminded by firm staff members about earlier discussions.
After the lawyer left the firm and continued to practice, the lawyer’s former partners asked whether they had a duty to report the forgetful lawyer to the state disciplinary authorities, based on the potential impact on clients.
The version of Model Rule 8.3 adopted in Kansas requires reporting any known conduct that — in the reporting lawyer’s opinion — constitutes ethical misconduct. That is broader than the analogous Model Rule, which does not mandate reporting all rule violations, but only requires reporting non-confidential knowledge of conduct raising a substantial question as to the lawyer’s “honesty, trustworthiness or fitness” as a lawyer.
But even Kansas’ broad rule, the Committee said, only applies when the reporting lawyer has knowledge of a violation of the state’s Rules of Professional Conduct. A lawyer who is forgetful, even to the point of causing concern, need not be reported unless the reporting lawyer knows of an actual rule violation.
The Committee urged that the forgetful lawyer be referred to the Kansas Lawyers Assistance Program, established to help lawyers with issues affecting performance of their duties, including physical or mental disabilities resulting from age.
Many states have such assistance programs. In Ohio, for example, the Ohio Lawyers Assistance Program is funded through the state Supreme Court and the state bar association, and helps judges, lawyers and law students get treatment for substance abuse, chemical dependency, addiction and mental health issues.
The Kansas opinion is in line with the ABA ethics committee’s Opinion 03-429 (2003), which advised that a lawyer who becomes mentally impaired and violates an ethics rule must be reported. Other states with opinions on this or similar issues include North Carolina, Utah and Colorado.
If you suspect that a colleague has a mental impairment, be watchful. You might not have a duty to report mere forgetfulness, but impairment that interferes with competent representation, or causes a violation of some other ethics rule, might raise a reporting duty, depending on your state’s version of Rule 8.3. And in any event, the sensible and compassionate thing to do is to guide your colleague to your state’s lawyer assistance organization.