By Charles V. Berwanger
What are the duties of managerial and subordinate attorneys who discover that a partner is impaired?
Suppose a senior partner and successful trial lawyer, who is a rainmaker of his law firm shows signs of impairment. He is representing a client in major litigation but his performance is borderline competent if not worse. Working with him is a five year associate who has noticed such performance lapses. Those lapses include missing meetings without explanation, failing to respond promptly to client’s inquiries, faltering significantly in arguing on client’s behalf against a motion for summary judgment, and the list continues. Such lapses have been noticed by subordinate attorney and are quite concerning to her.
The California State Bar by the Standing Committee on Professional Responsibility and Conduct recently issued Formal Opinion number 2021 – 206 (the “Opinion”). The Opinion discusses in depth the various duties imposed by the State Bar Act, Business and Professions Code section 6000 et seq., and the California Rules of Professional Conduct on the impaired attorney, the subordinate, and the law firm. The Opinion, although advisory and not binding upon the courts, nonetheless carries substantial weight in the State Bar Court and State courts in giving effect to the Act and Rules.
First, the impaired attorney by his failure to render competent service to the client ipso facto violates the all-important Rule 1.1. Rule 1.1 entitled “competence”, mandates that “[a] lawyer shall not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence.” “Competence” is defined as applying in rendering legal service “the (i) learning and skill, and (ii) mental, emotional, and physical ability reasonably necessary for the performance of such service.” (Rule 1.1(b).) An impaired lawyer, who may be affected by any one of a myriad of disabling forces, has violated and continues to violated the ethical obligation of competence imposed by Rule 1.1. The Opinion continues to discuss other Rules which the impaired lawyer has violated based upon the fact pattern provided.
Second, the Opinion discusses the many duties imposed on the subordinate attorney who has witnessed the impairment. That attorney, with but five years’ experience, is by the Opinion given major responsibilities to deal with the impairment.
Rule 5.2(a) requires a lawyer to comply with the Rules and the State Bar Act “notwithstanding that the lawyer acts at the direction of another lawyer or other person.” In the above scenario subordinate lawyer approached impaired lawyer suggesting that another attorney take on the task of representing client. Impaired lawyer said “no, this is my client and I will continue to represent it.” In the circumstance where the subordinate lawyer is a member of a firm, the subordinate lawyer has a duty to “take reasonable remedial measures to try to correct the violation and to protect the client from harm…. The subordinate lawyer may consider communicating with other supervisory lawyers within the firm about the issues.” (Formal Opinion number 2021 – 206.)
The use of the word “may” in the Opinion appears to have a much greater imperative element to it than “may” suggests. The Opinion continues: “where the subordinate lawyer believes that communication with other lawyers within the firm will be ineffective (or such communication has been unsuccessfully attempted) she “should take such action as may be required to preserve the client’s rights.” What action is suggested? The Opinion continues: “the subordinate lawyer must take necessary remedial measures to protect the client, which would normally involve communicating to the client any material information about the lawyer’s conduct that impacts the client’s interest as required by Rule 1.4.” The independent duty of the subordinate lawyer to the client is paramount and that duty is not lessened if the impaired lawyer is the only other lawyer in the law firm. There, contact with the client may be required as discussed.
Third, the responsibilities of lawyers having managerial or supervisory authority over the impaired lawyer are set forth in Rule 5.1 and those duties, too, are discussed in the Opinion. Such duties are also client-centric and their application may require that the impaired lawyer be confronted with the facts of his impairment and steps be taken to ensure the client’s proper representation. How this plays out relative to the client’s representation is, of course, fact dependent.
In sum, the client-centric State Bar Act and the Rules impose the duty upon subordinates and law firm management to be attuned to ensuring the continued competence of all counsel and to act to protect clients where competence is an issue. The failure to do so runs afoul of the Act and the Rules.