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Illinois Bar Journal

The Magazine of Illinois Lawyers

December 2009Volume 97Number 12Page 638

December 2009 Illinois Bar Journal Cover Image

Loss Prevention

Your Responsibility for an Impaired Partner

By
Karen Erger

No, you aren't your partner's keeper. But if he or she is impaired, the Rules of Professional conduct do compel you to protect your clients and the profession.

Then the Lord said to Cain, "Where is Abel your brother?"
He said, "I do not know; am I my brother's keeper?"
Genesis 4:9

Your partner Vic Venerable has been the guiding light and moral touch-stone of your mid-size law firm for many years. Vic is everything a lawyer should be: learned, intelligent, fiercely ethical, and dedicated to his clients and his colleagues. Just a visit to his office is awe-inspiring - its walls are covered with photos, clippings, and other souvenirs of a long and noble career.

So it takes a while for you to suspect - let alone believe - that there is something wrong with Vic. Sure, his office has become a mess - but isn't any lawyer's office a mess when he's busy? And he seems, lately, to repeat stories he's told you before - but every lawyer loves retelling his war stories, doesn't he?

But as time goes by, you are faced with facts you can't ignore. Gail Greenhorn, the junior lawyer on one of his cases, reluctantly confesses that a few of their mutual clients refuse to work with Vic anymore. "Nothing against Vic," a client says, "but he just doesn't seem focused on our case, and he's not returning our calls." you learn that Vic has missed a few client appointments, and that Gail is always ready to attend hearings that Vic has forgotten about. Then Vic misses a few important filing deadlines.

You can't ignore it any longer. It's clear to you that Vic is suffering from some type of mental impairment, be it substance abuse, depression, dementia, or some other mental disorder. What are your ethical obligations in the face of this knowledge?

We can glean some helpful guidance from ABA Ethics Committee Formal Opinion 03-429 (June 11, 2003), which discusses the obligations of a lawyer or law firm to an impaired lawyer within the firm. Let's investigate the requirements of the new Illinois rules of Professional Conduct (effective January 1, 2010).

But first - what about the impaired lawyer's obligations?

This one is easy. Impaired or not, Vic has the same obligations under the rules as any other lawyer - including the duties of competence (rule 1.1), diligence (1.3), and all the rest. rule 1.16(a)(2) expressly states that a lawyer shall not represent (or continue to represent) a client if "the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client." The problem, of course, is that we can't count on Vic to know, or, perhaps, to admit, that he is impaired.

OK, what are our responsibilities as Vic's partners?

The rules stop short of requiring you to guarantee Vic's compliance with the rules. But they do require that Vic's partners and those who have managerial authority for his law firm "make reasonable efforts to ensure that the firm has in effect measures1 giving reasonable assurance that all lawyers in the firm conform to the rules of Professional Conduct." rule 5.1(a).2 And if the firm's partners or managers know about violations of the rules at a time when their consequences could be avoided or mitigated, and fail to take reasonable remedial action, the rules will hold them responsible for the other lawyer's violation.3

Faced with the knowledge of Vic's impairment, what can the firm do? The ABA Opinion outlines a few options, noting that, in all cases, the firm's primary obligation will be to protect the interests of its clients:

  • Confront Vic with the facts of his impairment and insist upon steps to assure that clients are represented appropriately notwithstanding his impairment;
  • Forcefully urge Vic to accept assistance to prevent future violations of the rules; or
  • Limit Vic's ability to handle legal matters or deal with clients.4

The Lawyers' Assistance Program (www.IllinoisLAP.org) would be an excellent resource for either Vic or his partners who are concerned about him. LAP can provide education, information and referral, peer assistance, and intervention on a confidential basis.

The firm will need to assess whether Vic's impairment can be cured or controlled, or is susceptible to accommodation. The ABA Opinion notes that some impairments can be accommodated by changing the circumstances under which the impaired lawyer's work is performed, or the type of work involved.5 Maybe Vic and Gail can collaborate on cases, under the supervision of another lawyer. The clients' interests must come first, but the firm will do well to remember that Vic may yet have much to contribute to the success of the firm and its clients, given the right circumstances.

If the firm concludes that Vic must discontinue providing services on a matter, they can't simply replace Vic with another lawyer. rule 1.4(b) requires Vic's client to be given information sufficient to make informed decisions about the representation, which, in this situation, may include information about the circumstances necessitating the change in responsibility.

The lawyer who informs the client will need to walk a tightrope of sorts. In the words of the ABA Opinion, "the lawyer must act with candor and avoid material omissions, but to the extent possible, should be conscious of the privacy rights of the impaired lawyer."

Vic's partners will need to review his current matters to determine the status of each and identify next steps. If it appears that Vic has committed malpractice, the firm must notify its professional liability insurer immediately not only to avoid loss of coverage, but also to avail itself of the help the insurer may be able to offer in navigating this situation. The firm will need to mitigate damages to the client, if any, and inform the clients of any damage to their cases.

Do we have an obligation to report Vic?

The file review may disclose that Vic has, in fact, violated the rules of Professional Conduct. If so, the partners may have an obligation to report that fact to the appropriate professional authorities. Here the ABA Model rules and the Illinois rules diverge. Under the ABA rules, the mere fact of the lawyer's impairment does not trigger an obligation to report, and even actual violations of the rules will only trigger an obligation to report if they "raise a substantial question as to the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects." ABA Model rule 8.3(a). If the impairment can be treated or managed in a way that eliminates the risk of future violations of this type, the violations need not be reported, according to the ABA opinion.6

However, under the Illinois rules of Professional Conduct, reporting is required if the lawyer knows that another lawyer has committed a violation of the rules that either demonstrate that the lawyer has committed a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects, or if the lawyer engages in conduct involving fraud, deceit, or misrepresentation. Illinois rules 8.3(a) & 8.4(b) & (c).

The ABA Opinion notes that if a report is required by rule 8.3, it may be possible for Vic's partners to "satisfy their obligation under 8.3 by disclosing the violation without identifying the impairment which caused the violation. However, in doing so, the lawyer must be careful to avoid potential violations under the Americans with Disabilities Act."7 And, if the report requires disclosure of client confidences under rule 1.6, Vic's partners will need to obtain the clients' informed consent.8

What if Vic leaves the firm?

If Vic leaves the firm - either by termination or resignation - his clients will need to decide whether they wish to be represented by the firm, or by Vic. As noted above, rule 1.4 obligates the firm to give the clients information they need to make reasonable decisions - in this case, about their choice of counsel. The ABA Opinion warns that "[i]n doing so, the firm must be careful to limit any statements made to ones for which there is a reasonable factual foundation."9

If clients have already chosen to follow Vic, the firm is not obligated to warn those clients that it believes Vic to be impaired, but it does need to avoid communications with former clients that suggest that the firm endorses Vic's ability to handle their matters. The ABA Opinion gives the example of "a joint letter from the firm and the departed lawyer regarding the transition."

Vic's departure, by the way, does not eliminate any obligation the firm may have to report under rules 8.3 and 8.4, as discussed above.

Conclusion

The rules of Professional Conduct do not allow a lawyer to ignore a partner who is impaired by mental illness, substance abuse, or other infirmity. The rules stop short of requiring us to be "our partners' keepers," but they do compel us to be the keepers of the best interests of our clients and the standards of the legal profession.


Attorney Karen Erger, former vice president and director of loss prevention with ISBA Mutual in Chicago, now works with Holmes, Murphy & Associates in Cedar Rapids, Iowa.


1. Some typical examples of such measures would include conflicts checking procedures, docketing protocol, and methods of accounting for client funds and property. See ABA Model rules of Professional Conduct, rule 5.1, Comments 2 and 3.
2. It's not just the firm's partners and managers who have this obligation. 5.1(b) requires any lawyer with direct supervisory authority over another lawyer to make reasonable efforts to ensure that the other lawyer conforms to the rules.
3. rule 5.1(c)(2).
4. ABA Formal Opinion 03-429, at 4.
5. Id.
6. Id at 5.
7. Id.
8. See rule 8.3, Comment [2], "A report about misconduct is not required where it would involved disclosure of information protected by the attorney-client privilege or by law. However, a lawyer should encourage a client to consent to disclosure where prosecution would not substantially prejudice the client's interest."
9. ABA Formal Opinion 03-429 at 6.


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