Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.

Is There an Affirmative Duty to Report the Impairment or Decline of Other Counsel?

Many legal educators, practitioners, and ethics commentators have appropriately focused their attention on the challenges and obligations of training and supervising new lawyers on their ethical duties. When taking the oath of admission, all California lawyers pledge to “faithfully discharge the duties of any attorney at law to the best of his knowledge and ability.” (Cal. Bus. & Prof. Code § 6067.) In practice, this duty is governed by Rule 3-110 of the Rules of Professional Conduct (“RPC”), which includes an obligation to supervise subordinate attorneys and non-attorney employees or agents. (Id.)

Self-interest and a risk of malpractice claims dictate that affiliated attorneys confront and address competence issues among colleagues, including those whose diminished faculties are due to substance abuse or age-related changes. But is there an affirmative duty to report the subpar performance of another attorney, including an opponent? Not under the RPC.

The ABA Model Rules of Professional Conduct (“Model Rules”) adopt a broader view, however. While not binding in California, the Model Rules are frequently cited as persuasive when there is no corollary authority in California.

As in California, the Model Rules impose duties of competence, diligence and communication with clients. (See, Rules 1.1, 1.3, and 1.4.) A lawyer who consistently forgets or overlooks commitments, and cannot remember facts and information needed to adequately represent his or her clients, is at risk of violating one or more of these rules.

ABA commentators have opined that: “[a] lawyer may not shut his eyes to conduct reflecting generally recognized symptoms of impairment (e.g., patterns of memory lapse or inexplicable behavior not typical of the subject lawyer, such as repeated missed deadlines.)” (ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 03-341 (2003) at p. 3).) As a result, all counsel should look for changes in their own abilities and those of their colleagues, and even be sensitive to the competence of other counsel.

Regarding a duty to report other counsel, Model Rule 8.3(a) provides: “[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.” The rule, however, does not require the disclosure of information protected by the attorney-client privilege or learned through participation in an approved lawyer assistance program. (Model Rule 8.3(c).)

– Eric R. Deitz, Wingert Grebing Brubaker & Juskie LLP

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**