Dealing with an impaired lawyer in your firm

Sweeping the problem under the rug is looking for trouble

Ethics

Thomas P. McGarry and Thomas P. Sukowicz

Tom McGarry is leader of Hinshaw & Culbertson’s national lawyers professional liability practice and handles professional liability defense, legal ethics and the defense of lawyers in disciplinary proceedings.

Thomas Sukowicz has devoted his entire career to issues involving lawyers’ professional liability and responsibility. His practice involves professional liability, legal ethics, risk management, loss prevention and the defense of lawyers in disciplinary proceedings.

October 2014

Lawyers, like everyone else, can become impaired to a lesser or greater degree because of addiction to drugs or alcohol or an emotional or psychological condition. If you become aware that a lawyer in your firm may be impaired, do the Illinois Supreme Court Rules of Professional Conduct require that you do anything about it?

Unless the lawyer is impaired to the extent that the lawyer is violating or is likely to violate the Rules of Professional Conduct, you are not required to do anything. If, however, you become aware that a lawyer in your firm is violating one or more rules of professional conduct, or there is a serious risk that the lawyer will violate the rules (impaired or not), you may have a duty to take some action, but only if you are either a manager of the law firm or that attorney’s supervisor.

Rule 5.1(a) provides that a lawyer with managerial authority in a law firm is required to make reasonable efforts to ensure that the firm has measures in effect to give reasonable assurance that all lawyers in the firm conform to the rules.

Rule 5.1(b) requires that a lawyer having direct supervisory authority over another lawyer make reasonable efforts to ensure that the other lawyer conforms to the rules. Comment [2] of Rule 5.1 explains that “reasonable efforts” include establishing internal policies and procedures designed to reasonably assure that all lawyers in the firm will conform to the rules. The policies and procedures should be designed to detect and resolve conflicts of interest, identify dates by which actions must be taken in pending matters, account for client funds and property and ensure that inexperienced lawyers are properly supervised.

Because of the requirements of Rule 5.1, if law firm management or a supervising attorney learns that a lawyer is not complying with the rules, reasonable efforts must be made to address the issue. Failure to address the issue could give rise to exposure for disciplinary action against the managing or supervising attorney. Rule 5.1(c) provides that a lawyer shall be responsible for another lawyer’s violation of the rules if the managing or supervising lawyer orders or knowingly ratifies the other lawyer’s conduct, or fails to take “reasonable remedial action” when the consequences of the actions of the impaired lawyer can be avoided or mitigated. Thus, at least for managing and supervising lawyers, they are their brothers’ and sisters’ keepers.

Which rules are likely to be violated by an impaired lawyer?

One of the most obvious is Rule 1.4, which requires that lawyers inform clients of certain decisions or circumstances, consult with the client about the means by which the client’s objectives are to be accomplished, inform the client about the status of his or her matters, promptly comply with reasonable requests for information and explain matters so that the client may make informed decisions.

Another is Rule 1.3, which requires that a lawyer act with reasonable diligence and promptness in representing a client. In essence, it means that a lawyer should not neglect a matter in which the lawyer is representing a client. It is no secret that failing to communicate with clients and neglect are among the most common complaints that clients make to the Attorney Registration & Disciplinary Commission each year.

An impaired attorney may also violate Rule 1.1, which requires that a lawyer provide “competent representation” by using “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

An impaired lawyer may exercise poor judgment, which can lead to making misrepresentations (sometimes to cover up errors or omissions), representing parties with adverse interests or disclosing confidential information, all of which violate the rules.

Rule 1.16(a)(2) requires that a lawyer withdraw from representing a client if the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.

The managing or supervising attorneys need to make sure the attorneys of the firm, including impaired attorneys, avoid violating these rules.

Any lawyer in the firm may have a duty under Rule 8.3 to report the impaired lawyer to the ARDC but only for certain kinds of conduct. The duty to report is limited to violations of two rules: Rule 8.4(b), which prohibits lawyers from engaging in “a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects,” and Rule 8.4(c), which prohibits “conduct involving dishonesty, fraud, deceit or misrepresentation.” Any lawyer who has knowledge that an impaired lawyer (or any lawyer) has engaged in dishonest or criminal conduct has an obligation to report that knowledge to the ARDC.

Keep in mind that the Lawyers’ Assistance Program is available to provide assistance to a lawyer who has an addiction or mental or emotional health issue. For confidential assistance, you may call LAP at (312) 726-6607, or send an e-mail to gethelp@illinoislap.org.