UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 02-13
Attorney A has knowledge that Attorney B, to whom he has referred clients, has developed a medical condition which renders him unable to practice law with any material degree of competence.
QUESTIONS:
(1) Does Rule 8.3 require that the Attorney A report Attorney B's impairment to the appropriate professional authority?
(2) Does Attorney A have an obligation to communicate his concerns to clients referred to Attorney B?
SUMMARY OF OPINION
(1) If the Attorney A has knowledge that Attorney B has violated Rules 1.1 and 1.16 (a) (2) due to a medical condition materially impairing the attorney's ability to represent a client or clients, and the violations raise a substantial question as to Attorney B's fitness as a lawyer, Attorney A shall inform the appropriate professional authority, unless the reporting would disclose information protected by Rule 1.6.
(2) Since the referrals have evolved out of Attorney A's representation of his or her clients, Attorney A is obligated to advise clients concerning changes in his or her opinion, especially if Attorney A's reservations concerning the attorneys fitness have reached a level where Attorney A is contemplating reporting a violation, which could lead to disciplinary action regarding Attorney B's fitness or transfer to incapacity inactive status.
OPINION:
Rule 8.3 (a) of the Rules of Professional Conduct address the standards for reporting professional misconduct. The Rule states, "a lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to the lawyers honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate professional authority." Under Rule 1.16 (a) (2) a lawyer shall not represent a client, or where representation has commenced, shall withdraw from representation of a client if the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client. Rule 1.1 requires a lawyer to provide competent representation to a client.
Rule 8.3 requires that Attorney A make the following analysis to determine if reporting is mandatory. Rule 8.3 states that the lawyer is not obligated to report all violations of the rules of professional conduct. A report is mandatory only if the violation under Rules 1.1 and 1.16 (a) (2) raises a substantial question as to the lawyer's fitness as a lawyer in other respects. "This Rule limits the reporting obligation to those offenses that any self-regulating profession must vigorously endeavor to prevent." Comment 8.3. However, in our Opinion 95-01 we stated that if Rule 8.3 were construed narrowly to mandate only the reporting of violations that reflect upon the honesty or trustworthiness of the lawyer, that construction would render meaningless the additional reference to offenses that raise a question as to "fitness." One commentator, recognizing the ambiguity of Rule 8.3 , has suggested that the type of conduct that raises a substantial question as to fitness should be interrupted to mean conduct displaying "incompetence clearly amounting to malpractice." Gerard Lynch, The Lawyer as Informer, 1986 Duke L. J. 491, 539. The committee felt that a standard based on potential malpractice liability was too restricted. We believed, for example, that neglect of a client matter may be sufficient to raise a substantial question as to fitness, even though the neglect did not result in any actionable injury to the client. In addition, Rule 28 of the Rules for Lawyer Disciplinary Enforcement provides that mental or physical incapacity is a basis for disciplinary action.
Since accusing another lawyer of misconduct is a serious matter that should not be undertaken lightly, Rule 8.3 requires actual knowledge of, or believing clearly that there has been a violation, which implies more than a suspicion of misconduct. Our Opinion 95-07 raised a caveat when knowledge is gained from a client, since Rule 8.3 provides that the lawyer is not required under rule 8.3 to disclose information protected by Rule 1.6. Comments to the rule confirm this view. However, an attorney ought to encourage a client to consent to disclosure if there would be no substantial prejudice to the client.
If Attorney A has knowledge that Attorney B has violated Rules 1.1 and 1.16 (a) (2) due to a physical condition materially impairing the attorney's ability to represent a client or clients, and the violations raise a substantial question as to Attorney B's fitness as a lawyer, Attorney A should inform the appropriate professional authority, unless the reporting would disclose information protected by Rule 1.6. Attorney A could also meet with Attorney B and encourage him to seek professional help.
Does the Attorney A have an obligation to report his knowledge concerning Attorney B to his or her clients previously referred to the attorney? The attorney-client relationship involves both actions taken on behalf of the client, as well as opinions rendered to a client. The fact that the Attorney A's communication may interfere with the attorney-client relationship between clients and Attorney B does not under the Rules of Professional Conduct prohibit reporting attorney from communications with clients concerning changes in opinions rendered to them, but to the contrary would demand it. Since the referrals have evolved out of Attorney A's representation of his or her clients, Attorney A is obligated to advise those clients concerning his conclusions and change of opinion, especially if Attorney A 's substantial reservations concerning the Attorney B's fitness have reached a level where the Attorney A is contemplating reporting a violation, which could lead to disciplinary action regarding Attorney B's fitness. This would not be the case if the referral by Attorney A did not arise out of an attorney-client relationship. See the opinion concerning attorney's reporting on ineptness of co-counsel to client. See Nassau County N.Y. Bar Ass'n Comm. on Professional Ethics, Op. 02-02.