GPSOLO October/November 2009
The Ethics of Reporting on Your Colleague—or Yourself
People today are much more aware of mental health and addiction issues than they were even 20 years ago. Lawyers encounter clients who are dealing with these issues every day, but lawyers themselves also have mental health and addiction issues, perhaps even more than the general population.
What are the duties of a lawyer to act on the knowledge that another lawyer or a judge has a psychological condition or an addiction? What are the duties of lawyers when they are aware that they themselves have a psychological condition or an addiction?
Duty to Report Other Lawyers or Judges
In 1988, in In re Himmel, 125 Ill.2d 531, the Illinois Supreme Court surprised the legal community by suspending a lawyer for one year for his failure to report the misconduct of another lawyer. He was found to have violated the Illinois Rules of Professional Conduct and was disciplined for failing to report the conduct of his client’s previous lawyer, who had converted $35,000 in settlement funds from the client.
ABA Model Rule 8.3 provides:
(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.
(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.
Many jurisdictions use the ABA Model Rule standard that requires reporting when the conduct “raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects. . . .” This is a much broader requirement than that imposed by some state rules.
No version of Rule 8.3 requires that a lawyer report another lawyer or a judge solely because the lawyer has a psychological condition or an addiction.
Duty to Report Oneself
Under certain limited circumstances, the rules of the various jurisdictions require that a lawyer report his or her own misconduct to the agency or organization that handles attorney disciplinary matters. Neither the ABA Model Rule 8.3 nor the variations adopted by most states requires self-reporting. The reporting requirement only applies to a lawyer’s knowledge that another lawyer has committed a violation of the ABA Model Rules.
The versions of Rule 8.3 adopted by most jurisdictions also require only the reporting of the misconduct of another lawyer. An exception is Ohio Rule 8.3. This rule appears to require self-reporting.
Rule 8.3(d) in the Illinois Rules of Professional Conduct also imposes a duty on lawyers to report themselves to the ARDC (Illinois Attorney Registration and Disciplinary Commission) if they have been disciplined as a result of a disciplinary action brought before any body other than the ARDC. Thus, it is not the misconduct itself, but the fact that disciplinary action has been taken that triggers the duty of a lawyer to self-report.
In addition to the rules of professional conduct adopted by the various jurisdictions, there may be other rules requiring that lawyers report themselves to the appropriate disciplinary authority. For example, Illinois Supreme Court Rule 761(a) requires that an attorney who is convicted of a felony or misdemeanor must notify the ARDC of the conviction in writing within 30 days of the entry of the judgment of conviction. There may be similar requirements in other jurisdictions.
None of these rules, however, requires that a lawyer report him- or herself solely because the lawyer has a psychological condition or an addiction. Thus, if the lawyer has not engaged in any professional misconduct or been disciplined or convicted of a crime, there is no reporting obligation.
Although there is no obligation to report yourself, another attorney, or a judge because you believe that person has a psychological condition or an addiction, there is no prohibition against reporting that information. There may be circumstances in which you are concerned about a lawyer’s ability to handle the legal matters of clients or a judge’s ability to handle assigned cases. In such situations, a lawyer is permitted to make a report to the appropriate agency, such as the state bar, disciplinary commission, or judicial inquiry board. These agencies are primarily interested in protecting the public, the legal profession, and the administration of justice by imposing discipline where appropriate.
Reporting to a LAP
An alternative to self-reporting or reporting another lawyer is to contact the lawyer assistance program (LAP) in the lawyer’s or judge’s jurisdiction. Lawyers who are concerned about colleagues because of a possible psychological condition or addiction can meet with a LAP volunteer to discuss a possible intervention that will encourage recovery.
In most jurisdictions, a LAP provides confidential assistance for problems related to a psychological condition or addiction. The confidentiality of consultations with the lawyer or judge are usually protected by the rules of professional conduct of that jurisdiction. The ABA Model Rule 8.3(c) does not require disclosure of information gained by a lawyer or judge while participating in an approved LAP.
Many jurisdictions have similar protections but are not necessarily placed under a variation of the ABA Model Rule 8.3.
These rules do not necessarily grant immunity to the reporting lawyers or protect the initial communication to a member of a LAP as privileged the way that information received in a formal proceeding would be protected.
Duty of an Impaired Lawyer
ABA Model Rule 1.16(a)(2) requires a lawyer to decline to represent a client or withdraw from a matter if “the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.” A failure to withdraw, by itself, would be a violation of this rule and would subject the impaired lawyer to discipline for that violation.
Violation of ABA Model Rule 8.3 raises substantial questions about a lawyer’s honesty, trustworthiness, or fitness and must be reported to the appropriate professional authority. Arguably, a violation of ABA Model Rule 1.16(a)(2) would also raise a question about a lawyer’s fitness as a lawyer because a necessary element of such a violation is that the lawyer’s representation of the client is materially impaired. In states with a rule similar to the ABA Model Rule, lawyers may have a duty to report another lawyer whose physical or mental condition materially impairs the lawyer’s ability to represent a client.
Of course, not all jurisdictions have rules identical to the ABA Model Rules. It is always important to check your jurisdiction’s version of the rules of professional conduct rather than relying on the ABA Model Rules for guidance.
Duties of Partners
The partners of lawyers who have a psychological condition or addiction may have supervisory obligations under the rules of their jurisdictions. ABA Model Rule 1.1 requires competent representation. ABA Model Rule 5.1 requires partners in a law practice to ensure that all firm lawyers comply with the ABA Rules of Professional Conduct. A partner may have a duty to monitor the affected lawyer and his or her cases to determine whether the lawyer is handling client matters competently and honestly. If, for example, a lawyer knows of a partner’s gambling addiction, the lawyer should make sure that all client, firm, and third-party funds are protected from misappropriation.
Options for Affected Lawyers
What a lawyer can or must do when he or she has a psychological condition or an addiction depends on the rules of the lawyer’s jurisdiction and the nature and severity of the lawyer’s condition. If the lawyer is not impaired by the psychological condition or addiction, and the lawyer has not engaged in conduct that must be reported, then the lawyer is not required to do anything. Under such circumstances, lawyers should seek professional help to address the condition, but that would be a personal decision.
Lawyers who are incapacitated by their psychological condition or addiction may be transferred to inactive status while incapacitated. The transfer to disability inactive status is not necessarily considered a disciplinary sanction because there is no finding that the lawyer has engaged in any misconduct. If disciplinary proceedings had been initiated based on an allegation of professional misconduct, those proceedings are usually stayed while the attorney is on disability inactive status.
Sometimes a lawyer’s psychological condition or addiction is either not serious enough for a transfer to inactive status or the attorney has begun treatment for the condition or addiction and is recovering. A lawyer in that position, together with his or her partners, should put in place some procedures to help determine whether the lawyer is continuing to function effectively. One procedure would be a weekly review of the lawyer’s files with a partner in the firm. Lawyers in solo practice may want to engage a mentor with whom to consult.
If an impaired lawyer is the subject of a disciplinary investigation and/or prosecution for violating professional misconduct rules, the lawyer’s psychological condition or addiction might mitigate the misconduct. Such mitigation may result in less severe sanctions. There must be a showing that the impairment relates to the misconduct. The law regarding this issue varies among the jurisdictions. (For more, see the article “Discipline and Disability: When Is Disease a Defense?” www.abanet.org/genpractice/magazine/2009/octnov/robinson.html.)
Any disciplinary sanction depends on whether the lawyer has addressed the impairment and is sufficiently recovered so there is no need for further treatment or monitoring. In these cases, the disciplinary sanction may be less severe without any conditions being placed on the lawyer’s ability to practice. If the lawyer is in ongoing treatment and monitoring, the lawyer may be suspended or placed on probation under conditions intended to ensure that the lawyer continues participating in treatment. If the lawyer is not in treatment and has no intention to enter into a treatment program, disciplinary sanctions may be imposed that include an indefinite suspension. In such situations the suspension continues until the lawyer petitions for reinstatement and proves that he or she has been rehabilitated and is able to practice law.
Civil Liability for Reporting
Would a lawyer incur potential liability for reporting another lawyer’s or a judge’s psychological condition or addiction? There are laws that regulate the kinds of medical records that are confidential, and this article cannot review those laws. Assuming that no medical records are being disclosed, but only a lawyer’s impressions about another lawyer or a judge, what kind of exposure would the lawyer have?
Some jurisdictions have rules that grant immunity from civil liability for communications with the disciplinary authority. Under such rules there is no civil liability for making a report to the disciplinary agency. Lawyers should check the rules of the jurisdictions in which they practice to determine reporting requirements and whether those who make reports to the disciplinary agencies are immune from civil liability.
Lawyers concerned about liability may provide information anonymously, but anonymous reports containing only mere assertions are unlikely to trigger an investigation. An anonymous report should contain sufficient verifiable information about the behavior to indicate a problem that needs investigation. For example, if a lawyer witnesses another lawyer or judge in a courtroom who appears to be intoxicated, the lawyer could report the date, time, courtroom number, and identities of witnesses, as well as the conduct that suggests intoxication, such as slurred speech, weaving, or incoherent communications. With that specific information, the agency is able to investigate an anonymous allegation.
Are lawyers subjected to an investigation entitled to face their accuser? The answer varies, but as a general rule, the lawyer is entitled to know the source of that report. It is possible that some states withhold the identity of the reporting lawyer for good cause, such as if the subject lawyer is potentially homicidal owing to a psychological condition.
If there is a hearing regarding the subject lawyer’s fitness to practice law and the reporting lawyer has personal knowledge about the subject lawyer’s conduct, the reporting lawyer may be called as a witness at a hearing, and the lawyer who is the subject of the hearing would be entitled to be present during that person’s testimony. Again, procedures and rules regarding confidentiality or anonymity vary from state to state.
Civil Liability for Failing to Report
There are circumstances under which a cause of action may exist for failure to report the psychological condition or addiction of another lawyer or a judge. For example, many jurisdictions recognize a cause of action if someone is referred to a lawyer who is likely to commit malpractice. The referring lawyer may be liable to the client if he or she knew of the other lawyer’s psychological condition or addiction and the receiving lawyer committed malpractice.
If a lawyer has knowledge of another lawyer’s intention to kill or seriously injure another person, there may be a duty to disclose the danger to the person at risk.
The current rules generally treat the psychological condition or addiction of a lawyer or judge as a private matter, giving rise to no duty to report such a condition. The rules impose a duty to report only when the condition makes lawyers or judges impaired so that they cannot effectively function or when the condition contributes to their engaging in related misconduct that is required to be reported. Even if there is no obligation on the part of a lawyer or judge to take any action, working with a LAP is a way to try to help the lawyer or judge who is in trouble or heading for trouble, and at the same time assist in maintaining the reputation of the profession and the administration of justice.
Thomas P. Sukowicz is a partner with Hinshaw & Culbertson LLP in Ft. Lauderdale, Florida, and Chicago, Illinois. His practice emphasizes professional liability, legal ethics, risk management, loss prevention, and the defense of lawyers in disciplinary proceedings. He may be reached at firstname.lastname@example.org.