In law school, many attorneys learned that if an attorney is impaired, an associate or subordinate attorney may have a duty to report the impaired attorney to their state bar. Yet the California Rules of Professional Conduct (CRPC) have never adopted ABA Model Rule 8.3: Reporting Professional Misconduct. In California, there is no duty to report an impaired lawyer to the State Bar or other governing body. Yet not having a duty to report the attorney to the State Bar doesn’t absolve a subordinate attorney or law firm from taking action to prevent the impaired attorney from harming a client’s interest. Last year the Committee on Professional Responsibility and Conduct (COPRAC) issued Formal Ethics Opinion 2021-206 to provide guidance regarding a subordinate lawyer’s and firm’s responsibility to address an impaired lawyer. This opinion does not create a new duty to report, but rather outlines a lawyer’s or law firm’s ethical duties implicated when addressing another lawyer’s impairment.

Responsibilities of the impaired attorney. First, impairment from disability, mental illness, or addiction does not excuse the impaired lawyer from complying with the rules or meeting their ethical duties. This means that if a lawyer becomes impaired, no matter the reason, they must comply with their duties despite the impairment. Even in situations where an impairment is preventing a lawyer from acting competently and diligently, the impaired lawyer must act with the necessary professional responsibility to protect their client’s interests. The opinion considers how the impairment may affect an attorney’s broader duties.

When an attorney experiences an impairment, they may fail to communicate significant developments to their client, thus negatively impacting the client’s representation. (CRPC, rule 1.4.) The opinion acknowledges that failure to communicate an impaired lawyer’s inability to continue a representation maybe be a violation of rule 1.4. Better practices thus encourage a lawyer, when possible, to plan ahead for an impairment and communicate an impairment as soon as possible so that the client can make a decision how best to proceed. Please note that not all impairments require a total withdrawal from representation, such as a short-term disability or a chronic illness. Rather, ethical client communication requires an attorney to inform their client of an impairment to allow the client to make decisions that best protect their interests. Depending on the matter, the ethical communication may be that the attorney is taking a personal leave and the attorney has identified coverage counsel in their absence.

The opinion recognizes that the impairment can cause a personal conflict of interest between the impaired lawyer and their client. Personal conflict becomes an issue where the impaired lawyer places their personal, financial, or reputational interests ahead of their client’s interests. CRPC, rule 1.10(a)(1) would not necessarily prohibit a law firm from continuing the representation of a client when an attorney has a personal conflict, provided that the impaired lawyer’s personal conflict doesn’t present a significant risk of materially limiting the representation. An example of a possible material limitation would be where an impaired partner refuses to take a leave of absence and remains attorney of record on a high-profile case. If a law firm discovers a lawyer’s personal conflict due to impairment, the firm may be required to disclose it in writing and seek the client’s written informed consent to continue the representation.

If the impairment is such that the lawyer knows or reasonably should know that they cannot continue the representation due to their mental or physical condition, then the lawyer may have a duty to terminate the representation. (CRPC, rule 1.16(a)(2).) The permissive or mandatory withdrawal for impairment depends on whether the impaired attorney will or is likely to violate the rules of the State Bar. Some temporary impairments may not require a mandatory withdrawal because the impairment is such that the attorney may be able to meet their ongoing obligations to their clients while seeking medical help for the impairment. Other impairments deeply impact a lawyer’s ability to comply with the rules, thus requiring a withdrawal.

Better practices when confronting attorney impairment. Admittedly, for solo practitioners, addressing impairment can be difficult. Ideally, a solo practitioner will have contingency plans for their practice should they become impaired. These plans should include succession plans in case of death or total impairment. Many attorneys suffer from ongoing chronic illness, which can be quite debilitating. For lawyers living with a chronic illness or mental health issues, they should have contingency plans for when they must place their health before their client’s needs. For some attorneys, the contingency plan is to keep their client load to a certain number of clients because work-life balance is the best way to keep themselves healthy and prevent a severe disability. Additionally, lawyers who know that they’re at greater risk of an impairment may wish to have a contingency plan in place, which would outline in great detail the steps family or a coverage lawyer will follow to protect their client’s interests. This plan should be easily found by the coverage lawyer or family member.

Ideally, a firm will have a plan in place regarding how to deal with either an impaired associate or an impaired partner. The plan should take into consideration relevant employment law and employee privacy issues, along with the firm’s professional responsibility to their affected clients. For subordinate attorneys, the plan can include information directing how a subordinate can disclose a possible impairment of a partner or supervisory lawyer. The firm should educate the subordinate attorneys about how the firm’s and the subordinate individual’s ethical duties can be affected for failure to address a partner or managing attorney’s impairment. As for managing attorneys or partners in a firm, the policies in place can address impairment of a subordinate attorney and, more importantly, a fellow partner. The policy can include decision-makers, identification of a neutral law firm to assist with handling the impaired attorney, a way for attorneys to anonymously disclose information, and a plan for investigating allegations of impairment.

Finally, this ethics opinion is not exhaustive of the possible avenues for handling and managing attorney impairment. It’s merely a starting point of guidance on ethical considerations in issues regarding an impaired lawyer.

Mary Grace Guzmán of Guzmán Legal Solutions advises lawyers, law firms, and law students on their professional responsibilities and risk management needs. She also teaches legal ethics and professional responsibility at JFK Law School. She works with lawyers and law firms regarding legal ethics issues such as conflict of interest issues, fee disputes, and advises lawyers and law firms as outside ethics counsel to manage risk. Ms. Guzmán recognizes that a lawyer’s or law firm’s needs are best met by preventing legal ethical issues before they arise or managing an ethical issue once identified.

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