All 50 states have adopted the Model Rules of Professional Conduct, in whole or in part, with the exception of California. While there is no model rule that directly addresses “substance abuse,” the ABA Standing Committee on Ethics and Professional Responsibility has issued opinions that provide some guidance on this issue.
On June 11, 2003, the committee issued Formal Opinion 03-429, which addresses a lawyer’s obligations arising under the model rules regarding “mentally impaired lawyers” within a firm. In Opinion 03-429, the committee noted that Rule 1.16 of the model rules “specifically prohibits a lawyer from undertaking or continuing to represent a client if the lawyer’s mental impairment materially impairs the ability to represent a client.” Understanding that lawyers may be unaware or in denial of the impact of an impairment on their ability to represent clients, the committee concluded:
When the impaired lawyer is unable or unwilling to deal with the consequences of his impairment, the firm’s partners and the impaired lawyer’s supervisors have an obligation to take steps to assure the impaired lawyer’s compliance with the Model Rules.
The committee noted that while substance abusers may be able to provide competent and diligent representation during intermittent periods of sobriety, they may be unable to provide such representation during periods of abuse. If a lawyer’s periods of impairment have a considerable likelihood of recurrence, his or her supervisor may have to conclude that the lawyer’s ability to represent clients is materially impaired. According to Rule 5.1, this conclusion creates a duty for the supervisor (or other individual with managerial authority) to make reasonable efforts to prevent the impaired lawyer from violating the Model Rules. While Rule 5.1 already requires the existence of internal policies and procedures designed to ensure that all lawyers within a firm uphold the requirements of the Model Rules, the committee advises “[w]hen a supervising lawyer knows that a supervised lawyer is impaired, close scrutiny is warranted because of the risk that the impairment will result in violations.”
If a lawyer cannot represent clients competently and in compliance with the model rules due to substance abuse, a partner of the firm or a supervising lawyer must report the violation. It should be noted that Rule 8.3(a) does not require reporting impaired lawyers if no violation of the model rules has occurred, and a firm “reasonably believes that it has succeeded in preventing the lawyer’s impairment from causing a violation of a duty to the client by supplying the necessary support and supervision.” While removing impaired lawyers from pending matters is a step in the right direction, Rule 1.4(b) also may require informing clients of the circumstances surrounding the removal to allow them to make informed decisions regarding their representation. In such cases, lawyers should disclose necessary and material information to the clients, while remaining conscious of the impaired lawyers’ privacy rights.
In Opinion 03-429, discussion of the obligations of non-partners and lawyers not in a managerial role is conspicuously absent. Although there is no provision specifically requiring subordinate lawyers to take affirmative steps to ensure other lawyers within the firm conform to the model rules, Rule 5.2(a) does require subordinate lawyers to abide by all of the Rules of Professional Conduct, “notwithstanding that the lawyer[s] acted at the direction of another person.” Rule 8.3(a), which does not distinguish between supervisory and subordinate lawyers, requires lawyers with knowledge 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” to report that conduct to the appropriate state disciplinary authority. Therefore, it is clear that we have an obligation as young lawyers to report other lawyers’ conduct that we know has adversely affected their representation of clients or has caused some other violation of the model rules.
But what is our responsibility when we start to see conduct that could potentially affect a colleague’s ability to practice competently but has not yet resulted in a violation of the model rules? Because Rule 5.1 refers specifically to supervisory lawyers and partners regarding implementing preventive measures for impaired lawyers, it is not clear whether subordinate lawyers are required to act before a violation occurs. Extrapolating from the standing committee’s reasoning in Opinion 03-429, it appears that a young lawyer with knowledge of a colleague’s impairment should discuss the situation with a partner or supervisor within the firm who can take appropriate steps to prevent a violation. If the firm fails to take such measures (or the measures are insufficient) and the impaired colleague’s conduct violates duties to clients or other ethical obligations, the young lawyer must then report the violation directly to the disciplinary authority.
Soon after Opinion 03-249, the committee issued Opinion 03-431 on August 8, 2003, regarding the duty to report rule violations of lawyers not within the same firm. If a violation raises a “substantial question” regarding an impaired lawyer’s fitness to practice law, Rule 8.3(a) requires a lawyer with knowledge of this conduct to report the violation to the “appropriate professional authority.” The impaired lawyer’s lack of fitness could be assessed through either a pattern of conduct or even a single significant act. However, rumors or conflicting information about a lawyer and heavy drinking or impairment in social settings do not trigger a duty to report under Rule 8.3. According to the committee, “[a] lawyer must know that the condition is materially impairing the affected lawyer’s representation of clients.”
The committee recommended consulting a mental-health professional regarding an impaired lawyer’s behavior or contacting an established lawyer-assistance program to aid in deciding whether such conduct raises a substantial question of the lawyer’s fitness to practice. Additionally, the committee suggested carefully addressing concerns directly with the affected lawyer, and speaking with the partners or supervisors of the affected lawyer’s firm before making a report under Rule 8.3. While there is no requirement to make such contact before reporting questionable conduct, the disclosure allows an impaired lawyer and his or her firm to take steps to “assure that the affected lawyer is not representing clients while materially impaired” and may eliminate the need to report. It is important to point out, however, that if the partners and supervising lawyers do not take action with respect to the impaired lawyer’s conduct, any resulting violations must be reported according to Rule 8.3.
When addressing substance abuse, your decisions and actions have the potential to affect your life and someone else’s. Don’t jump to conclusions and rush to report activity that may not be an ethics violation, but also be mindful of your own ethical obligations under the model rules. While lawyers owe the highest obligation to protect and further the interests of clients, we also have an obligation to protect and assist each other. Our colleagues are like a second family; after all, we do spend more time at work than at home. Therefore, we should consider the circumstances carefully and approach each situation with the utmost thoughtfulness and respect—not only for the clients, but also for the lawyers involved. When possible, help fellow lawyers exhibiting early signs of substance abuse before their ability to competently represent clients is adversely affected, either by discussing your observations with them or taking advantage of the many available resources and lawyer-assistance programs.
If you are ever unsure about your obligation to report other lawyers’ conduct or to whom you should report a violation of the model rules, you should contact your state’s ethics board for guidance. The resources link on the Professional Responsibility section of the ABA website provides a “Directory of State Disciplinary Agencies” that includes contact information for each state. The ABA’s Commission on Lawyer Assistance Programs also has a hotline (1-866-LAW-LAPS), which provides information and support for lawyers with substance abuse issues and those facing crisis.
Rachel G. Packer is an attorney in New York, New York.