Legal Ethics

Lawyer not required to report colleague's mental lapses absent ethics violation, ethics opinion says

Lawyers aren’t required to report another lawyer’s cognitive decline unless it is tied to an ethics violation, according to a Kansas ethics opinion.

The opinion by the Kansas Bar Association’s ethics committee considered the need to report a law firm partner who left the firm, but continued to practice despite evidence of mental decline. The ABA/BNA Lawyers’ Manual on Professional Conduct covered the opinion (PDF).

The former partner had memory lapses, was unable to dial in to a conference call, couldn’t recall prior discussions with staff members, and had to be reminded of the facts of representation by a client. But the law firm did not state that the former partner had failed to provide competent representation to a client.

The opinion noted that Kansas lawyers have a broader duty to report misconduct by other lawyers than required by Rule 8.3(a) of the ABA Model Rules of Professional Conduct. The reporting requirement under the ABA model rule applies only to ethics violations by other lawyers that raise “a substantial question” as to that other lawyer’s “honesty, trustworthiness or fitness as a lawyer.” In Kansas, lawyers have a duty to report themselves and also to report ethics violations that don’t implicate honesty, trustworthiness and fitness.

Even so, there is no duty to report the former partner with cognitive decline because the Kansas rule requires reporting only when there is knowledge of acts or omissions constituting a rule violation, the ethics opinion says.

The opinion noted that the law firm seeking the ethics advice had not expressed an opinion that the former partner had violated the duty to provide competent representation to a client. If there are concerns, the opinion said, the law firm should consider referring the former partner to the Kansas Lawyers Assistance Program.

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