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.
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.