2013 Formal Ethics Opinion 8: Responding to the Mental Impairment of Firm Lawyer

Posted on May 23, 2015 by

Photo Courtesy of the North Carolina State Bar

View the Formal Ethics Opinion in Full Here

After receiving inquiries about the responsibilities a partner or supervising lawyer has to a firm lawyer that has mental impairment, the North Carolina State Bar adopted 2013 FEO 8 at its July 25, 2014 meeting.  Within this opinion, mental impairment includes diminished capacity due to age, depression, and substance abuse problems.

Diminished Capacity

Rule 1.1 mandates that a lawyer must competently represent a client; therefore, mental impairment can hinder a lawyer’s ability to comply with this rule.  Additionally, having a mental impairment can impede a lawyer’s ability to act with due diligence (required by Rule 1.3) and communicate appropriately with a client (required by Rule 1.4).  Thus, because impaired lawyers have the same obligations as other lawyers, the inability to fulfill the above mentioned rules constitutes a violation of the Rules of Professional Conduct.

Consequently, a lawyer who is a partner or serves as some managerial authority is required by Rule 5.1(a) to closely supervise a lawyer who is suspected or known to have a mental impairment.  In order to do this, the partner should consult with mental health professionals for advice on how to recognize and help someone with diminished mental capacity.  Reporting a rules violation may not be necessary, as the partner or managing lawyer can take steps to change the lawyer’s environment or work load as suggested by the mental health profession.  The partner may also make a confidential report to the Lawyer Assistance Program (LAP).  Only once the impairment becomes “substantial” does Rule 8.3(a) require a lawyer to report a violation.

The Duty to Report

However, if the impaired lawyer refuses treatment, or to stop practicing knowing he has a mental impairment, or if the misconduct is serious (such as violation of trust account rules); then the lawyer is require to report.  That duty to report cannot be fulfilled by reporting the lawyer to LAP.  If a the lawyer with diminished capacity decides to leave the firm, the partner still has a duty under Rule 1.4(b) to explain to any of that lawyer’s client the situation as to enable them to make an informed decision.  If the lawyer doesn’t personally observe the impairment, but is informed by another associate lawyer in the firm, the partner has a duty to investigate.  As follows, if an associate lawyer thinks the impaired lawyer triggers the misconduct under Rule 8.3, he must inform his supervisor, and if nothing is pursued, then he must seek advice from the State Bar.

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About Ana Hopper, Editor-in-Chief Emeritus (33 Articles)
Ana Hopper is a 2016 Campbell Law graduate and served as the Editor-in-Chief of the Campbell Law Observer for the 2015-2016 academic year. She is originally from Winston-Salem and graduated from the University of North Carolina at Charlotte in 2012 with a Bachelor of Arts in Political Science and Sociology. The summer following her first year of law school, Ana worked as a research assistant for Professor Amy Flanary-Smith. Ana also interned at the Criminal Appellate Section of the Department of Justice her second year, and at the New Hanover District Attorney's Office as an intern the summer before her third year. She served as a Legal Research and Writing Scholar, Vice President of BLSA, and Community Chair of Lambda during her time at Campbell.
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