Ethics Question of the Month February 2024

If You See Something, Say Something?

When an attorney notices that another attorney’s substance abuse issues may be affecting their ability to practice law, do the ethics rules require them to do anything about it?

The Situation

Carl is a solo practitioner who decides to hire an associate, Sonia, to help with his caseload. Sonia is a recent law school graduate who is excited to work with and learn from Carl, a well-known litigator. Carl quickly begins to give her increasing responsibility, asking her to help cover hearings and meet with clients.

After a year, Sonia begins to observe increasingly erratic behavior by Carl, including working odd hours and disappearing without letting Sonia or their legal assistant know his whereabouts. She has had to step in for him at the last minute, including attending hearings where he was supposed to appear as lead counsel as well as handle client meetings he was supposed to attend.

Eventually, Sonia begins to suspect that Carl has a substance abuse problem. She has seen him sneaking drinks during office hours, and he often appears intoxicated after disappearing from the office during the day. To protect the clients’ interests, she has had to remind him numerous times about hearings or deadlines that he has forgotten. She also finds that court papers he has prepared have numerous errors that she has had to correct before filing them.

Sonia has become increasingly concerned about Carl’s fitness to practice law and knows that his clients are likely unaware of his substance abuse issues and his inability to handle their matters competently. She has been able to cover for him thus far so that no client’s interests have been jeopardized, but she believes that she needs to take action.

She is considering whether she should report Carl to either the Chief Disciplinary Counsel’s office (CDC) or the Texas Lawyer’s Assistance Program (TLAP).

The Question

Which of the following is the most accurate?

The Correct Answer is D Of 166 Responses, 30% are correct.

  1. A 30
  2. B 28
  3. C 18
  4. D 50
  5. E 40

The Explanation

Rule 8.03(a) of the Texas Disciplinary Rules of Professional Conduct states:

Except as permitted in paragraphs (c) or (d), a lawyer having knowledge that another lawyer has committed a violation of applicable rules of professional conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate disciplinary authority.

The initial question here, therefore, is whether Carl’s conduct raises a “substantial question” as to his fitness as a lawyer. Comment 2 to Rule 8.03 states that “[t]he terms ‘substantial’ refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware.” Generally speaking, the Rule does not obligate the reporting lawyer to be absolutely certain about either the misconduct of the other lawyer or the existence of a “fitness” issue; the Rule errs on the side of reporting where the conduct observed otherwise meets its threshold requirement.

So what constitutes fitness to practice law? In Texas, lawyers must meet the threshold set forth in TDRPC Rule 1.01, entitled “Competent and Diligent Representation,” which states in part:

(b) In representing a client, a lawyer shall not:

(1) neglect a legal matter entrusted to the lawyer; or

(2) frequently fail to carry out completely the obligations that the lawyer owes to a client or clients.

(c) As used in this Rule neglect signifies inattentiveness involving a conscious disregard for the responsibilities owed to a client or clients.

Carl’s behavior – which includes excessive alcohol use, forgetting about hearings and deadlines, and making substantive legal errors – is clearly sufficient to raise a “substantial question” about Carl’s “fitness as a lawyer.” Sonia must report Carl’s behavior.

So to whom is Sonia required to report Carl’s behavior? While Rule 8.03(a) requires her to “inform the appropriate disciplinary authority” – which in Texas is the Chief Disciplinary Counsel’s Office – that requirement is subject to the exceptions of Rule 8.03(c) reads:

(c) A lawyer having knowledge or suspecting that another lawyer or judge whose conduct the lawyer is required to report pursuant to paragraphs (a) or (b) of this Rule is impaired by chemical dependency on alcohol or drugs or by mental illness may report that person to an approved peer assistance program rather than to an appropriate disciplinary authority. If a lawyer elects that option, the lawyer's report to the approved peer assistance program shall disclose any disciplinary violations that the reporting lawyer would otherwise have to disclose to the authorities referred to in paragraphs (a) and (b).

Many Texas lawyers are unaware that Rule 8.03(c) provides a narrow but significant exception to the general obligation to report misconduct to the CDC when the case involves chemical dependency or mental illness. In these cases, Rule 8.03(c) permits the reporting lawyer to report the lawyer’s action to “an approved peer assistance program rather than to an appropriate disciplinary authority.” The Texas Lawyer’s Assistance Program is the approved peer assistance program pursuant to this Rule.

Therefore, Rule 8.03(c) allows Sonia to choose between CDC and TLAP when fulfilling his duty to report Carl’s conduct, which clearly implicates substance abuse. The correct response is D.

NOTE: The State Bar of Texas created The Texas Lawyer’s Assistance Program (TLAP) in 1989 to provide attorneys help with substance abuse and mental health issues. Texas attorneys can contact TLAP 24/7 to seek help for themselves or to attempt to get help for a colleague. By law, all calls are completely confidential. To reach TLAP, call 800-343-TLAP (8527) or text TLAP to 555888.

Upon receiving information regarding a colleague, if appropriate, TLAP will confidentially reach out to the attorney in question directly or by means of a trained local volunteer attorney familiar with the problem faced by the attorney in need. TLAP helps connect lawyers in need to professional care, funding for such care, peer support, and group support. The identity of any attorney who calls TLAP regarding a colleague will not be revealed to anyone, and all callers can remain anonymous.

For more information – including self-help info and helpful resources – go to TLAPHelps.org or to the TLAP Facebook page.

As always, if there is an emergency, call 911.

Bluebook Citation

If You See Something, Say Something?: Ethics Question of the Month - February 2024, Texas Center for Legal Ethics (2024), from https://legalethicstexas.com/ethics-question-of-the-month/ethics-question-of-the-month-february-2024/ (last visited Jun 16, 2024)