Ethical Rules and Professional Conduct for Lawyers
Explore the ethical rules and professional conduct guidelines for lawyers, focusing on competence, diligence, mental impairments, and obligations within a law firm. Understand the importance of maintaining mental and physical fitness to effectively represent clients and fulfill legal responsibilities.
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Presentation Transcript
Preparing for the Worst Karen Goodman David Majchrzak Wendy Patrick Irean Zhang
ETHICAL RULES AND IMPAIRMENTS Rule of Professional Conduct 1.16(a)(3) provides that a lawyer shall not represent a client if the lawyer s mental or physical condition renders it unreasonably difficult to carry out the representation effectively.
RULE OF PROFESSIONAL CONDUCT 1.1: COMPETENCE (a) A lawyer shall not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence. (b) For purposes of this rule, competence in any legal service shall mean to apply the (i) learning and skill, and (ii) mental, emotional, and physical ability reasonably* necessary for the performance of such service.
BUSINESS AND PROFESSIONS CODE 6067 Requires a lawyer faithfully to discharge the duties of any attorney at law to the best of his (or her) knowledge and ability.
RULE OF PROFESSIONAL CONDUCT 1.3: DILIGENCE (a) A lawyer shall not intentionally, repeatedly, recklessly or with gross negligence fail to act with reasonable diligence in representing a client. (b) For purposes of this rule, reasonable diligence shall mean that a lawyer acts with commitment and dedication to the interests of the client and does not neglect or disregard, or unduly delay a legal matter entrusted to the lawyer.
ABA FORMAL OPINION 03-429 Addresses obligations to a mentally impaired lawyer within the same firm. If a lawyer s mental impairment is known to partners in a law firm or to a supervisor, steps must be taken to give reasonable assurance that such impairment will not result in violation of the ethical rules.
ABA FORMAL OPINION 03-429 (continued) An impaired lawyer s mental condition may fluctuate over time. Certain dementias or psychoses may impair a lawyer s performance on bad days, but not on good days during which the lawyer behaves normally.
ABA FORMAL OPINION 03-429 (continued) Substance abusers may be perfectly able to offer competent representation when they are sober. The problem for the firm, is concern about the frequency of addiction-fueled relapse.
ABA FORMAL OPINION 03-429 (continued) Some disorders that appear to be mental impairment (Tourette s Syndrome), while causing conduct that appears highly erratic, may not interfere with competent, diligent legal representation such that they materially impair a lawyer s ability to represent clients.
ABA FORMAL OPINION 03-429 (continued) Lawyers are not doctors. Difficult for supervising lawyers to diagnose substance abuse problems in subordinates. Accommodations may include: Less deadlines Unpressured environment Legal research or drafting v. Trial Supervision
ABA FORMAL OPINION 03-431 Addresses the duty of a lawyer who acquires knowledge that another lawyer (not in the same firm) suffers from a mental condition that materially impairs ability to represent a client under ABA Model Rules (which have a mandatory reporting requirement)
ABA FORMAL OPINION 03-431 (continued) Notes that lawyer has no obligation to discern whether another lawyer suffers from mental impairment, but may not shut his or her eyes to conduct generally reflecting symptoms of impairment that materially impair the representation of clients.
ABA FORMAL OPINION 03-431 (continued) A lawyer who believes that another lawyer s mental condition materially impairs her ability to represent clients, and who knows that that lawyer continues to do so, must report that lawyer s consequent violation of Rule 1.16(a)(2), which requires that she withdraw from the representation of clients.
ABA FORMAL OPINION 03-431 (continued) Knowing that another lawyer is drinking heavily or is evidencing impairment in social settings is not itself enough to trigger a duty to report. A lawyer must know that the condition is materially impairing the affected lawyer s representation of clients. Lawyer might consider speaking to the affected lawyer herself . . . (or) if the affected lawyer is practicing within a firm, the lawyer should consider speaking with the affected lawyer firm s partners or supervising lawyers.
SIGNS OF IMPAIRMENT Behaviors: Missed Deadlines Failure to appear at court proceedings Lack of communication/not available Lack of follow through Disappears or vanishes for periods of time
SIGNS OF IMPAIRMENT (continued) More behaviors: Improbable excuses Office closed Same mistakes repeated Dissatisfied clients Court concerns/sanctions
SIGNS OF IMPAIRMENT (continued) Physical signs: Confusion/Forgetfulness Smells of alcohol Disheveled appearance Signs of intoxication
TYPES OF IMPAIRMENT Drugs/alcohol Other addictions Dementia/Alzheimer s Serious injury or illness Declining physical health Depression/anxiety/other mental disability Distractions/stress
DRUGS/ALCOHOL Attorneys experience alcohol and substance abuse problems at 2 to 3 times the rate of the general population, and is higher among attorneys age 30 or less.
OTHER ADDICTIONS Gambling Sex Pornography/Internet
GAMBLING ADDICTION Per the National Academy of Sciences, 2-3% of population has experienced problems with pathological gambling disorders in year 1998 Signs: Preoccupation with reliving past gambling experiences Gambling increasing amounts of money After losing, returns to get even Lies to conceal extent of gambling Has borrowed or stolen funds to finance gambling Relies on others to bail out financial losses Stops paying bills, payroll, other shortfalls
AGING LAWYERS Per the State Bar of California, average age is 49 Over 100,000 lawyers in the state are over the age of 60 Reasons: Work is not physically taxing Able to continue for a long time due to institutional knowledge Financial strains keep people working longer
DEMENTIA / ALZHEIMERS Dementia is characterized by emotional, mental and physical deterioration caused by damage to the brain. The risk increases with age. Symptoms can develop slowly or suddenly
DEMENTIA / ALZHEIMERS (continued) 1. Difficulty concentrating and planning 2. Memory loss 3. Short attention span 4. Lack of motivation 5. Depression 6. Mood or behavioral changes 7. Lack of personal care
DEMENTIA / ALZHEIMERS (continued) Alzheimer s is a gradual disease that worsens over time. Starts with mild memory loss, but later stages include loss of ability to carry on a conversation and interact with environment.
DEPRESSION / ANXIETY Signs of Depression: Feeling sad, hopeless, worthless Changes in energy, sleep, eating habits
DEPRESSION / ANXIETY Signs of Anxiety Disorder: Excessive worry or anxiety Irritability Panic attacks Muscle Tension Sleep disturbance/fatigue Irritability
DISTRACTIONS / STRESS Divorce/Separation Accidents Arrests Illness or Death of Family Members
DECLINING PHYSICAL HEALTH Signs: Slowing down Absences Less hours Inability to complete tasks Fatigue
DEALING WITH IMPAIRMENT The Attorney s Denial Masked with staff Masked with skill, experience Stigma of condition Lawyer are experts at denial Have difficulty admitting weakness
DEALING WITH IMPAIRMENT (continued) The Law Firm s Denial Want to believe the behavior will pass Hard to confront senior attorney Want to keep earning paycheck Reaction may not be positive
IMPACT ON SOLO PRACTITIONERS No one to monitor work but clients/staff/court No one (qualified) to pick up slack when things are missed Low quality of work Missed deadlines Lack of communications Missed appearances Dismissals of suits Often leads to State Bar complaints and legal malpractice lawsuits
IMPACT ON SOLO PRACTITIONERS (continued) Addiction/Depression involve isolation and solo practice can exacerbate this behavior because no one is watching
CONFRONTING THE IMPAIRED LAWYER Intervention (speak to the impaired lawyer) Get professional help Frank discussions Protecting clients - clients must always come first
DEALING WITH THE IMPAIRMENT Referral to Lawyer Assistance Programs California State Bar LAP The Other Bar (substance/alcohol recovery program) Assistance with/monitoring of practice and/or impairment (consider including in partnership agreement) Notification to clients Complaints to bar, termination
2016 VIRGINIA LEGAL ETHICS OPINION 1886 Hypothetical 1: Associate advises firm that another senior associate has a serious alcohol and cocaine addiction. Firm has received complaints about senior associate in terms of missed appointments, appearing late in court, failure to return phone calls, smelling of alcohol and placing a client in default. When a partner confronts the senior associate, he denies have any substance abuse and claims his performance is attributable to marital stress.
VIRGINIA LEGAL ETHICS OPINION 1886 (continued) The partner s duty to supervise the senior associate requires reasonable efforts to assure no further conduct that breaches ethical duties to clients. Could remove associate from some cases or place him under close supervision. Recommend referring the senior associate or making a confidential report to a LAP.
VIRGINIA LEGAL ETHICS OPINION 1886 (continued) Hypothetical 2: Partner in two lawyer firm notices that her 60 year old partner with stellar career has been confused and has called her by his ex-wife s name several times and has been mixing up details of his cases. Partner has heard that her partner s behavior in court has been erratic and at times, odd. She hesitates to diagnose her partner and does not want to ruin his reputation. She hopes he will retire soon.
VIRGINIA LEGAL ETHICS OPINION 1886 (continued) There is no indication of any ethical breaches. However, awareness of a potential issue requires the first partner take reasonable steps to ensure no ethical breaches occur. As an initial step, a candid conversation urging her partner to seek evaluation and treatment is recommended.
DO I NEED A PLAN? No formal duty to have a plan, but do have duty of competency, loyalty and confidentiality Without a plan, your practice is in danger
DO I NEED A PLAN? (continued) Business & Professions Code 6180, et seq. (where attorney dies, is disbarred or suspended): the superior court on its own motion, the state bar, a client or interested person may make application to the superior court. . . for assumption by the court of jurisdiction over the law practice
DO I NEED A PLAN? (continued) Court appoints an attorney to review files, notify clients and apply for extensions of time pending clients finding new counsel . Business & Professions Code 6180.5. Practice will be liquidated.
DO I NEED A PLAN? (continued) Business & Professions Code 6190: The courts of the state shall have jurisdiction to assume jurisdiction over the law practice as set forth in section 6180 when an attorney has become(through excessive drug or alcohol use, physical or mental illness or other infirmity) incapable of devoting the time and attention to, and providing the quality of service for, his or her law practice which is necessary to protect the interest of the client if there is an unfinished client matter for which no other active member of the State Bar, with the consent of the client, has agreed to be responsible.
DO I NEED A PLAN? (continued) Where attorney consents, the State Bar, a client or an interested person may apply to the court for relief. Where attorney does not consent: only the State Bar may apply for assumption of jurisdiction. Business & Professions Code 6190.1
DO I NEED A PLAN? (continued) If application granted: Court issues an order requiring impaired attorney to cease practice of law and attorney is listed as inactive with State Bar. Attorney must reapply to be placed on active list with State Bar. Practice will be liquidated- there will be no practice to return to after treatment.
DO I NEED A PLAN? (continued) Probate Code 2468 (disabled attorney) and 9764 (deceased attorney) allow a conservator or personal representative to petition the court for appointment of a successor attorney to control the practice. Courts will generally appoint the successor attorney identified on an advanced healthcare directive, and the successor attorney can protect the value of the practice for the estate and/or temporarily disabled attorney.
