Question
A lawyer in my firm appears to be having trouble concentrating on information given to him by clients or other attorneys. Do I have an ethical duty to report this to our firm’s clients?
Answer
First and foremost, a lawyer who is having trouble concentrating on matters has a duty to ensure that he or she is able to provide competent legal representation and, if necessary, must disclose his or her condition to clients. The requirements of SCR 20:1.1 (Competence) and SCR 20:1.4 (Communication with Client) are crucial components of the lawyer-client relationship. A lawyer must provide competent representation to clients at all times, which means he or she must have the requisite legal knowledge, skill, thoroughness, and preparation to effectively represent the client. What may be difficult, of course, is for the lawyer to admit that he or she is struggling with issues that affect his or her ability to represent clients.
There is not a lot of guidance regarding what information must be conveyed to a client if a lawyer has a medical condition that might (or might not) affect his or her ability to represent a client. Some medical conditions are obvious, and it is not necessary to communicate them to the client. Other medical conditions are not obvious, and the lawyer must notify the client if he or she, because of the condition, has a limitation that affects his or her ability to provide competent representation to the client. The lawyer must discuss the nature of the limitation and how it may affect the representation. A decision as to whether the medical condition affects the ability to effectively represent a client will depend on the limitations imposed by the condition and the lawyer’s reasonable belief about his or her abilities.
Other lawyers in the firm may be obligated to interact with the lawyer and verify that the lawyer is able to provide competent representation to the client. Clients generally hire a law firm to provide representation even though they select a particular lawyer in the law firm to be their attorney. Other lawyers in the law firm owe the same fiduciary duties to that client as does the specific lawyer. As a result, other lawyers in the firm might find it necessary to intercede on behalf of a lawyer who has a medical condition that affects his or her ability to provide competent legal services to make sure that the client is properly represented and there is no harm flowing to the client from the limitations being experienced by the particular lawyer.
This too may be a very complex and difficult situation, depending on the nature of the relationships between the lawyer suffering from the medical condition or other type of limiting condition and the firm’s other lawyers. There is an obligation, however, for other firm members to address the situation to ensure clients are not suffering harm as a result of the representation by the lawyer with physical or mental limitations.
A recent decision from the Colorado Court of Appeals addressed this situation and held that a law firm did not have a fiduciary duty to disclose information about an attorney in the firm who had a history of disciplinary proceedings, mental illness, alcoholism, and related arrests. The court of appeals concluded that the law firm did not have to disclose this information because the law firm had supervisory measures in place to ensure that the representation provided by the attorney with the prior history was competent and the law firm proved that the representation provided by this attorney did not have an adverse effect on the legal services provided to the client.
The court also held that the client had signed an engagement letter that gave the firm the right to bring in other attorneys to assist the “lead attorney” in the representation of the client and that decision-making was delegated to the “lead attorney” so that decisions regarding the attorneys who would represent the client were effectively delegated to the law firm. This case shows that a law firm that takes appropriate steps to ensure proper representation by an attorney who has a history of impairment might not be subject to a fiduciary duty to disclose information to the client provided the client incurs no harm as a result of the representation provided.
Need Ethics Advice?
As a State Bar member, you have access to informal guidance and help in resolving questions regarding Wisconsin’s Rules of Professional Conduct for Attorneys.
Ethics Hotline. To informally discuss an ethics question, contact the State Bar ethics counsel, Timothy Pierce, or assistant ethics counsel Aviva Kaiser. They can be reached at (608) 229-2017 or (800) 254-9154, Monday through Friday, 9 a.m to 4 p.m.
Dealing with the impaired lawyer is a difficult situation that requires the utmost care and caution by other lawyers in the firm. The other lawyers in the firm owe certain duties to clients of the impaired lawyer even though they are not providing direct legal representation. Often, this is a matter of addressing the limitations with the impaired lawyer to ensure that proper legal representation is provided. Lawyers should contact the Wisconsin Lawyers Assistance Program (WisLAP) at the State Bar of Wisconsin (800-543-2625) for help in addressing these situations. WisLAP can advise on best practices for approaching the lawyer and meet with the lawyer to determine appropriate referrals for evaluation and to render ongoing consultation toward resolution of the firm’s concerns and the lawyer’s potential performance problems, and impairment.
