Ethics Opinion 377
Duties When a Lawyer is Impaired
Introduction
The District of Columbia Legal Ethics Committee has examined the ethical duties of partners; other managerial or supervisory lawyers and subordinate lawyers; and non-lawyer employees to take appropriate measures when they reasonably believe another lawyer in the same law firm or government agency is suffering from a significant impairment that poses a risk to clients.1 A related question involves the duties owed to clients and the profession when an impaired lawyer leaves a law firm or government agency, particularly when the lawyer may continue to practice law, regardless of whether clients are, or may be, terminating their relationship with the firm in order to remain clients of the departing lawyer.2
This Opinion deals only with mental impairment, which may be a chronic or temporary condition arising out of or related to age, substance abuse, a physical or mental health condition or other circumstance affecting the lawyer. This Opinion supplements the guidance contained in Legal Ethics Opinion 246, with a specific focus on the issue of impaired lawyers, whose conduct may or may not trigger mandatory reporting obligations under the Rules, as discussed herein. This Opinion also relies, in part, upon ABA Committee on Ethics and Professional Responsibility Formal Opinion 03-429 (2003).
The impairment of a lawyer may fluctuate over time, regardless of its cause. However, if a lawyer’s periods of impairment are on-going or have a likelihood of recurrence, then partners, or other lawyers with managerial or supervisory authority may have to conclude that the lawyer’s ability to represent clients is materially impaired.
A range of ethics rules are implicated, including those setting forth the duties owed by lawyers to clients and the profession, and those addressing issues of supervising lawyers and non-lawyer employees. At the outset, and as discussed within this opinion, the Committee recognizes that there are tensions between ethical duties that arise under the D.C. Rules of Professional Conduct (the “Rules”) and requirements or prohibitions that may exist under the substantive law, specifically with respect to employee privacy and other rights. Lawyers and law firms must be cognizant of the legal landscape in which these difficult issues occur.3
Mental impairment may lead to an inability to competently represent a client as required by Rule 1.1, to complete tasks in a diligent and zealous manner as required by Rule 1.3, and to communicate with clients about their representation as required by Rule 1.4.
Rule 5.1 requires partners or other lawyers with managerial or supervisory authority to make reasonable efforts to ensure that all lawyers and those under their supervision comply with the applicable Rules and to ensure that their law firm or government agency has in effect measures giving reasonable assurance that all lawyers in the firm or agency conform to the Rules. These provisions require managerial or supervisory lawyers who reasonably believe or know that a lawyer is impaired to closely supervise the conduct of the impaired lawyer because of the risk of violations of the Rules and resulting harm to clients. Rule 5.2 may also apply to subordinate lawyers if they know of and ratify the conduct of the impaired lawyer.
Rule 8.3 requires a lawyer, regardless of managerial or supervisory authority, to report an impaired lawyer to the appropriate professional authorities including, but not limited to, the District of Columbia Office of Disciplinary Counsel,4 if the impaired lawyer has committed a violation of the Rules that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness to practice law, unless such disclosure would be prohibited under the duty of confidentiality owed to clients under Rule 1.6 or other law. See Footnote 3. Further, if the firm or government agency removes the impaired lawyer from a matter, it may have an obligation under Rule 1.4 to discuss with the client the change in staffing on the matter. The duty to discuss removal of government lawyers from a matter may be different because of government policies or regulations.
If the impaired lawyer resigns, is removed or otherwise leaves the law firm, the firm may have additional disclosure obligations under Rule 1.4 to clients who are considering whether to remain with the firm or to transfer their representation to the departing lawyer. However, the firm should be cautious to limit any disclosures to necessary information permissible to disclose under applicable law. The obligation to report misconduct under Rule 8.3 is not eliminated if the impaired lawyer leaves the firm.
Beyond the ethical obligations embodied in the D.C. Rules, a fundamental purpose of identifying and addressing lawyer impairment is to encourage individuals who are suffering from mental impairment to seek and obtain assistance and treatment. This purpose should not be forgotten as lawyers, firms and agencies seek to comply with the ethical mandates discussed herein.
Background on Impairment Issues in the Legal Profession:
In 2016, the ABA Commission on Lawyer Assistance Programs and the Hazelden Betty Ford Foundation published the results of national research on the issue of substance abuse and other mental health concerns among American lawyers. The study reported rates of substance abuse among lawyers that were far higher than those in other professions. The results also showed that the most common barrier for a lawyer seeking help was fear of others finding out and general concerns about confidentiality.
Roughly a quarter of the study participants identified their substance abuse or mental health issues as having first started prior to law school. In August 2017, the National Task Force on Lawyer Well-Being, a commission comprised of lawyers, judges, academics and medical professionals, issued a report, The Path To Lawyer Well-Being: Practice Recommendations for Positive Change,5 which addresses issues of substance abuse and impairment and provides recommendations and action plans for lawyers, law firms and other appropriate communities.
Applicable Rules
- Rule 1.1
- Rule 1.3
- Rule 1.4
- Rule 1.6
- Rule 1.16(a)(2)
- Rule 5.1
- Rule 5.2
- Rule 5.3
- Rule 8.3
- Rule 8.4
Discussion
This Opinion addresses three potential scenarios that impose obligations under the Rules with respect to a lawyer who is known by other lawyers or staff in the same law firm or government agency to be suffering from an impairment. First, the opinion addresses the obligations of partners and other managerial and supervisory lawyers to take steps to prevent an impaired lawyer from violating the Rules, to develop policies addressing impairment, and to create a firm or agency culture that allows subordinate lawyers and other personnel to report concerns regarding the impairment of a lawyer without reprisal. Second, it addresses the reporting obligations of a lawyer who knows that an impaired lawyer in the same firm or agency has violated the Rules. Third, it addresses the obligations of lawyers when an impaired lawyer leaves a firm.
The Committee agrees with ABA Formal Opinion 03-429 that, “[i]mpaired lawyers have the same obligations under the [Rules] as other lawyers. Simply stated, mental impairment does not lessen a lawyer’s obligation to provide clients with competent representation.” Importantly, Rule 1.16(a) prohibits a lawyer from representing a client or requires a lawyer to withdraw if “the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client."6 Managerial and supervisory lawyers should be aware that an impaired lawyer may be unaware, or in denial, that the impairment has impacted the lawyer’s ability to represent clients. If the impaired lawyer does not or will not take affirmative steps to mitigate the consequences of the impairment, then the lawyer’s partners, managers, or supervisors are obligated under Rule 5.1 to take steps to ensure the lawyer’s compliance with the Rules.
A. Duties of partners, managerial lawyers or supervisory lawyers who reasonably believe that another lawyer is or may suffer from significant impairment.
Rule 5.1(a) requires that partners and comparable managerial lawyers in a firm or government agency make reasonable efforts to ensure that the firm or agency has in effect measures giving reasonable assurance that all lawyers conform to the Rules. The Rule also requires partners and managerial lawyers to make reasonable efforts to establish internal procedures and policies designed to provide reasonable assurance that all lawyers will conform to the Rules of Professional Conduct. See Rule 5.1, Comments 1 & 2. Similarly, Rule 5.1 requires lawyers having direct supervisory authority over another lawyer to make reasonable efforts to ensure that the other lawyer’s conduct conforms to the Rules of Professional Conduct. See Rule 5.1(b).7
What constitutes a “reasonable” effort or assurance is not defined, because the reasonableness of any measures will depend, in part, on the firm or agency’s size, structure and the nature of its practice. See Rule 5.1, Comment 3. Measures should, however, include processes ensuring that the firm or agency can identify and address issues of impairment among its lawyers. Whether other measures such as a written policy or a reporting procedure are appropriate will depend, in part, on the factors set out in Comment 3. For example, a written policy might be unnecessary for a solo practitioner, although it may be appropriate for a solo practitioner to instruct or provide resources for office staff on addressing issues of potential impairment in the workplace.
The Committee does not believe that a written policy regarding impairment is required in order to comply with Rule 5.1. As noted above, whether a firm or agency is required under Rule 5.1 to have written policies or procedures to address impairment issues depends largely on the type and size of the firm or agency. However, even if a written policy is reasonably determined to be unnecessary, firms and agencies may want to have a written policy to provide consistency in the guidance available to lawyers and other firm or agency personnel. Firms and agencies should strongly consider implementing practices and procedures that encourage and support reporting of concerns or observed impairment to the appropriate firm or agency personnel. Such procedures may include establishing a reporting hotline, permitting anonymous reporting or designating a “neutral” firm or agency lawyer who does not supervise or manage subordinate lawyers or non-lawyer employees to receive reports. Such measures can encourage reporting by removing concerns regarding reprisal or retaliation against subordinate lawyers and non-lawyer employees. Firm and agency reporting procedures should strike the balance of encouraging reports without mandating reports from these subordinate lawyers and non-lawyer employees, except as may be required by Rule 8.3.
The firm or agency’s ultimate ethical obligation is to protect the interests of its clients.8 To accomplish this task, a firm or agency should consider the following steps appropriate when dealing with an impaired lawyer: (1) speaking with the impaired lawyer about the perceived impairment and need for remediation; (2) requiring the impaired lawyer to seek assistance or professional evaluation as a condition of continued employment; or (3) referring the lawyer to the Bar’s confidential Lawyer Assistance Program. It may also be appropriate to provide the lawyer a list of firm-developed referrals or resources for education or assistance/consulting with outside mental-health professionals or other medical professionals. Depending on the circumstances, it may also be appropriate for the firm or government agency to consult with mental-health or medical professionals about the lawyer, prior to engaging in any remedial activities. To the extent such consultation is sought, the firm should ensure that its disclosures regarding the lawyer comply with applicable laws. See Footnote 3.
Firms and agencies should seek to create a culture of compliance that encourages reporting within the organization, including by lawyers and staff who do not have managerial or supervisory responsibilities. Although there is no provision in the Rules requiring subordinate lawyers to take steps to ensure that another lawyer’s conduct complies with the Rules, Rule 5.2 requires subordinate lawyers to abide by all Rules, even when acting at the direction of others.9 Subordinate lawyers should be reminded that (1) even when acting at the direction of another, a subordinate lawyer should not take actions that would ratify the misconduct of an impaired lawyer, and (2) if reporting is mandatory under Rule 8.3, then a subordinate lawyer’s duties may be discharged only by a report to the Office of Disciplinary Counsel, as discussed below. Rule 5.3 imposes upon lawyers an obligation to ensure that non-lawyers employed by or otherwise associated with lawyers engage in conduct that is compatible with the professional obligations of the lawyers.
If a managerial or supervisory lawyer in a law firm or agency receives a report from a lawyer or staff member, the managerial or supervisory lawyer must investigate and, if it appears that the report is meritorious, take appropriate measures to ensure that the impaired lawyer’s conduct conforms to the Rules. If the firm or agency declines to take action, then the reporting lawyer should seek guidance as to the lawyer’s professional responsibilities from the Bar’s Legal Ethics Helpline or from appropriate legal ethics advisors within or outside the lawyer’s organization.
If the firm or agency makes reasonable efforts to ensure compliance with the Rules, as set forth in Rule 5.1, then managerial and supervisory lawyers will not be ethically responsible for the impaired lawyer’s violation of the Rules, unless they knew of the conduct at a time when its consequences could have been avoided or mitigated but failed to take reasonable remedial action. See Rule 5.1(c)(2).
To protect more directly the interests of the client, the firm or agency should consider whether the impaired lawyer has a duty to refrain from practicing or if the lawyer must withdraw from representation under Rule 1.16(a)(2). Depending on the circumstances, the firm or agency may determine that it is appropriate to limit the ability of the impaired lawyer to handle legal matters or to deal with clients. Depending on the nature of the lawyer’s practice, and the effect the impairment has on the lawyer’s abilities, it may be appropriate to change the lawyer’s work environment or duties, such as removing the lawyer from trials or negotiations, and assigning tasks such as legal research or drafting. However, if the lawyer is performing any legal tasks, the firm or agency is responsible for supervising the work performed by the lawyer and the work product produced by the lawyer.
Rule 1.4 imposes a requirement that clients be reasonably informed of the status of a matter. Depending on the role that the impaired lawyer played on the legal team, the circumstances surrounding the removal of an impaired lawyer from the case may be material to the representation and therefore need to be disclosed, in order to allow the client to make informed decisions regarding the representation. Assuming disclosure does not violate substantive law, clients should be informed of sufficient facts about the lawyer’s impairment to permit a reasonable client to decide whether and how to continue the representation and to make a decision about the client’s matter. Comment 2 to Rule 1.4 states that the lawyer “must be particularly careful to ensure that decisions of the client are made only after the client has been informed of all relevant considerations. The lawyer must initiate and maintain the consultative and decision-making process if the client does not do so and must ensure that the ongoing process is thorough and complete.” If it is determined that disclosures are required by Rule 1.4 and permissible under law, then lawyers should be careful to disclose only necessary and material information to the clients, balancing truthful disclosures with the impaired lawyer’s privacy or other legal rights. It may not be appropriate, under the substantive law, to disclose any details regarding the nature (or suspected nature) of the impairment because, while it may be material to a client that a lawyer is being removed from the matter, the specific reasons for removal would likely not be material to the client’s ability to make an informed decision with regard to its matter or its continuing relationship with the firm.10
B. Rule 8.3 Obligations to Report Violations of the Rules.
Rule 8.3 imposes a mandatory reporting obligation, under certain circumstances, on every lawyer with respect to other lawyers’ violations of the Rules. As set forth in Rule 8.3(a):
A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the appropriate professional authority.
However, pursuant to Rule 8.3(c), “this rule does not require disclosure of information otherwise protected by Rule 1.6 or other law.” If reporting requires the disclosure of protected client information, the report may only be made with the client’s informed consent.
Rule 8.3 does not distinguish among managerial, supervisory or subordinate lawyers with respect to their reporting obligations and requires reporting when there is knowledge that another lawyer has committed a violation of the rules that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer.11
In Opinion 246, we adopted the four-part test established by other jurisdictions for determining whether the standard under Rule 8.3 is met. The duty to report is obligatory only if:
(1) the reporting lawyer has actual knowledge of the violation;
(2) reporting can be accomplished without disclosure of client confidences or secrets;12
(3) the violation involves a disciplinary rule; and,
(4) the violation raises a substantial question as to honesty, trustworthiness or fitness to practice law.
Government lawyers are advised to review department or agency guidance that may impose additional obligations before disclosing information protected by Rule 1.6, including an obligation to report allegations of misconduct internally for the purpose of reviewing the allegations and determining whether and what information should be disclosed in connection with a referral to the appropriate disciplinary authorities. See, e.g., Justice Manual §§ 1-4.300, 1-4.340.
If the duty to report is triggered under Rule 8.3, it is mandatory. Reliance on the expectation that another lawyer will make a report is insufficient to discharge duties under Rule 8.3. That said, a firm or agency may make a report on behalf of a lawyer or a group of lawyers who have a reporting obligation. In such instances, a single report submitted on behalf of one or more lawyers with an obligation to report will discharge the reporting obligation of each lawyer. Except as constrained by Rule 1.6, the lawyer’s duty is to make a report to the appropriate professional authority. If the impaired lawyer is licensed to practice in the District of Columbia, the report must be made to the Office of Disciplinary Counsel. Even if the firm or agency determines that the impaired lawyer did not violate the Rules and that, therefore, there is no duty to report under Rule 8.3, or if obligations imposed by Rule 1.6 or other law prohibit reporting, it may still be appropriate to encourage the lawyer to seek the assistance of the D.C. Bar Lawyer Assistance Program in an effort to provide assistance and support to the impaired lawyer. In addition, the Lawyer Assistance Program may serve as a resource for law firms, government agencies and lawyers navigating an employee’s impairment.
C. What is the duty of a managerial or supervisory lawyer when a lawyer with a significant impairment leaves the law firm?
In addition to any duty to report, managerial or supervisory lawyers may have a duty to any current client of the firm who is represented by the departing lawyer to ensure that the client has sufficient information to make an informed decision about continuing to be represented by the impaired lawyer.
The Committee believes that the approach adopted by the Philadelphia Bar Association in Philadelphia Bar Association Ethics Opinion 2000-12 is instructive. The Philadelphia Bar suggested taking a direct approach with the departing lawyer, urging the departing lawyer not to solicit the firm’s clients or to indicate that the departing lawyer would handle their cases in any kind of substantive way.
However, if the departing impaired lawyer intends to solicit current firm clients to follow the lawyer to a new practice, then Rule 1.4(b) requires a managerial or supervisory lawyer to explain the situation to the clients to the extent reasonably necessary to permit the clients to make informed decisions regarding the representation, again assuming that the explanation is not prohibited by law. This obligation exists whether or not the firm had taken previous steps to protect the clients, including but not limited to supervising the impaired lawyer or removing the impaired lawyer from the matter and informing the clients of such removal.13 In the end it remains the clients’ decision whether to follow the departing lawyer to a new practice, to remain with their current firm, or to retain a new firm.
Any communication with firm clients should be carefully worded to convey only demonstrable facts about the lawyer’s departure. Managerial and supervisory lawyers should be careful to disclose only necessary and material information to the clients, balancing truthful disclosures with the impaired lawyer’s privacy rights under the substantive law. Law firms are advised to consult the substantive law regarding what may or may not be said. See Footnote 3. If disclosure of information relating to the circumstances surrounding the lawyer’s departure is prohibited under substantive law, then no such disclosure may be compelled under the Rules. In this regard, the Committee believes that the existence of policies and procedures addressing the handling of issues of impairment within the law firm or government agency are helpful to demonstrating compliance with the Rules.
If a communication intended to request that the clients remain with the law firm will be sent by the law firm, then it should be drafted to avoid making false or misleading communications about the firm’s services or any misrepresentations that violate Rule 8.4(c). The law firm should avoid any action that might be interpreted as an endorsement of the impaired lawyer or the lawyer’s competence, such as sending a joint letter regarding the lawyer’s departure from the firm, or other correspondence from the law firm that could be considered an endorsement of the services of the departing attorney. The law firm may, of course, send a letter to its clients encouraging them to remain with the firm, but cannot reasonably prevent the departing lawyer from independently doing the same, provided that such communications are consistent with the departing lawyer’s ethical, legal or contractual obligations to the firm.14 To the extent the guidance in this Opinion endorses the use of a separate letter from the law firm to the clients, the Committee notes that the circumstances regarding the departure of an impaired lawyer from a law firm are extraordinary and warrant a departure from advice previously provided on the issue of departing lawyers.15
If an impaired lawyer leaves a firm and does not take firm clients, or the firm later learns that a former firm client has retained the impaired lawyer, then the law firm has no duty to supply those clients with facts about the impaired lawyer, as long as the firm avoids any action that might be interpreted as an endorsement of the services of the impaired lawyer or the lawyer’s competence.
Conclusion
In circumstances where a law firm or government agency addresses the issue of an impaired lawyer, there is a crucial balancing between protecting the interests of the clients and properly discharging the law firm or government agency’s obligations to protect the privacy of the lawyer under substantive law. Having appropriate policies and procedures designed to encourage reporting and to address issues of impairment within the law firm or government agency are important steps in ensuring that an impaired lawyer does not violate the Rules and that partners, and managerial and supervisory lawyers properly discharge their duties under the Rules.
Published: October 2019
1. Whether two or more lawyers constitute a “firm” or a “law firm” can depend on specific facts. See Rule 1.0(c). While the Rules exclude government agencies or other government entities within the definition of “firm” or “law firm,” the Rules do not exempt lawyers practicing in a government agency or other government entity, who are otherwise subject to the District of Columbia Rules of Professional Conduct, from the ethical obligations set forth herein. See, e.g., 28 U.S.C. § 530B.
2. An additional question, dealing more broadly with obligations to report a lawyer that is not employed by the same law firm or agency, may be answered by reference to D.C. Legal Ethics Opinion 246 (A Lawyer’s Obligation to Report Another Lawyer’s Misconduct) (1994). Lawyers that may be concerned about the impairment of lawyers outside their firm or agency over whom they do not have managerial or supervisory authority may nonetheless find the guidance within this Opinion instructive
3. This Opinion addresses only the ethical obligations of lawyers when faced with an impaired lawyer. There may also be legal obligations imposed under the District of Columbia Human Rights Act, the Americans with Disabilities Act, the Family Medical Leave Act, the Health Insurance Portability and Accountability Act or other state or federal laws that are beyond the scope of this Committee and this Opinion. There may also be fiduciary or contractual obligations imposed by partnership or employment agreements with an impaired lawyer. Further, as discussed in this Opinion, lawyers employed in government agencies may have obligations imposed by their department or agency with regard to reporting obligations.
4. The duty to report is not limited to the District of Columbia Office of Disciplinary Counsel. If the reporting lawyer is aware that the impaired lawyer is also a member of other bars or another profession that is subject to professional regulation, then the duty to report may also extend to reporting to those other entities.
5. http://www.americanbar.org/content/dam/aba/images/abanews/ThePathToLawyerWellBeingReportFINAL.pdf
6. Rule 1.16(a).
7. Supervisory lawyers are “‘lawyers who have supervisory authority over the work of other lawyers [and nonlawyers] in the office’ regardless of their status in the organization. . . . ‘Even if a lawyer is not a partner or other general manager, he or she may have direct supervisory authority over another lawyer. . . .’ The key to responsibility under paragraph (b) is the relationship between the two lawyers in the matter. The supervisory lawyer ‘need not be over the entirety of the second lawyer’s practice. . . [Rule 5.1(b)] would apply to direct supervision in a particular case, or to one partner [or manager] who has been given supervisory authority over another partner [or manager’s] work in a case or practice area.’” ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 14-467 (Sept. 8, 2014) (quoting RONALD D. ROTUNDA & JOHN S. DZIENKOWSKI, LEGAL ETHICS: THE LAWYER’S DESKBOOK ON PROFESSIONAL RESPONSIBILITY § 5.1-2(b), at 1009 (2014); GEOFFREY C. HAZARD, W. WILLIAM HODES & PETER R. JARVIS, THE LAW OF LAWYERING § 42.3 (3d ed., Supp. 2010); first, third and fourth alterations in the original).
8. See Rule 1.3.
9. Rule 5.2(b) provides that “a subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.”
10. Nothing in this Opinion should be interpreted to alter or diminish any obligation to make disclosures otherwise required under the Rules. For example, if the impaired lawyer committed malpractice or violated the standard of care in the representation, such conduct would have to be disclosed to the client under the Rules. Similarly, violations of the Rules may have to be reported to the Office of Disciplinary Counsel as set forth in Rule 8.3. The disclosure of such conduct, however, does not require the disclosure of the lawyer’s personal information protected under the law.
11. The Committee notes that the reporting obligation requires that a lawyer report actual knowledge of a Rule violation implicating the lawyer’s honesty, trustworthiness or fitness to practice law; even if the violating lawyer is not affiliated or employed with the reporting lawyer. Rule 8.4(g) allows for voluntary reporting of conduct to Disciplinary Counsel, so long as there is no threat to seek criminal charges or disciplinary charges solely to obtain an advantage in a civil matter. A complaint or report filed in good faith cannot be said to have been filed solely for the purpose of gaining an advantage in a civil matter. See D.C. Legal Ethics Opinion 220 (Threats to File Disciplinary Charges) (1991).
12. Rule 8.3(c) was amended in 2007 to include a limitation on the duty to report when prohibited by “other law.” Opinion 246 should now be read consistent with that amendment.
13. The Committee envisions a possible scenario in which the impaired attorney’s response to being confronted regarding the impairment is to leave the firm to practice elsewhere. In such cases, the firm may not have had the opportunity to remove the impaired lawyer from client matters, to take other protective measures, or to inform clients of the removal of the impaired lawyer from matters. As noted herein, however, the duty to address an issue of impairment, to communicate material information to a client or to mitigate harm may first arise long before the lawyer decides to leave the law firm.
14. See D.C. Legal Ethics Opinion 273 (Ethical Considerations for Lawyers Moving From One Private Law Firm to Another) (1997).
15. See D.C. Legal Ethics Opinion 372 (Ethical Considerations in Law Firm Dissolutions) (2017) citing ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 99-414 (1999).
