Question

I have a concern that one of my law firm’s partners has Alzheimer’s disease. Do I have to take steps to address how the disease might affect the firm’s clients?

Answer

Statistics show that many lawyers suffer from mental health challenges, whether it be depression, alcoholism, some type of cognitive limitation, or something else. As a partner in your law firm, you have a duty to ensure that any type of mental health issue or brain disorder experienced by another partner does not negatively affect the representation of the firm’s clients. Of primary importance is protecting the clients’ interests, and it may be necessary to take certain actions to address the conduct or behavior of the impaired lawyer regardless of whether the impairment results from age, substance abuse, or some type of physical or mental health condition.

A recent opinion from the Washington D.C. Bar Association Ethics Committee addressed some of the duties that a partner or another supervising lawyer must undertake if they believe that another lawyer in the firm has a mental impairment that imposes a risk to clients. A summary of the conclusions in D.C. Bar Ethics Opinion 377 includes the following:

• Mental impairment does not lessen the duties owed to clients, and a lawyer has a duty to withdraw if a mental or physical condition materially impairs the lawyer’s ability to represent the client.

• The firm’s ultimate ethical obligation is to protect the interests of its clients, and if an impaired lawyer does not or will not take steps to address the problem, then the lawyer’s partners, managers, or supervisors must do so.

• Lawyers who are law firm managers or supervise other lawyers must closely supervise the conduct of a lawyer they reasonably believe to be impaired, because of the risk of harm to clients.

• If the impaired lawyer’s violation of an ethics rule raises a substantial question as to the lawyer’s honesty, trustworthiness, or fitness to practice, all lawyers in the firm, whether supervisors or not, have a duty to report the violation to appropriate professional authorities – unless client confidentiality requirements (or other law) prohibits disclosure. Client consent can be obtained to allow the reporting of the conduct. The duty to report about the conduct is not eliminated if the impaired lawyer is removed or leaves the firm.

• The firm might have communication obligations to clients who are considering whether to stay with the firm or transfer their representation to a departing lawyer. The firm must also be cautious: Other law and the impaired lawyer’s privacy rights can limit the information permissible to disclose.

These conclusions provide good guidance for a lawyer who believes that another member of the firm may be suffering from some type of physical or mental health limitation that affects the ability to provide services to the firm’s clients. The Wisconsin Lawyers Legal Assistance Program (WisLAP) is an excellent resource for a lawyer to use if there are concerns about the mental health or capabilities of another lawyer in the firm. WisLAP representatives can provide background information and offer services that may assist the impaired lawyer to address the situation in a detached and professional manner.

The ability to competently represent a client should be a major concern of all lawyers whether in a firm or not. Protection of clients must be the utmost concern of everyone in the law firm setting, including support staff, associates, and partners of a lawyer who may be experiencing certain limitations.