What can a lawyer do when opposing counsel appears to have a mental health or substance problem affecting the case, and when must it be reported?

Plain-English summary

A lawyer (Attorney B) suspects opposing counsel (Attorney A) has a serious mental health or substance problem interfering with Attorney A's representation. The opinion resolves seven questions about what Attorney B may, must, or may not do.

The opinion concludes Attorney B may not report the concern directly to Attorney A's client, because Rule 4.2(a) bars communicating about the representation with a represented person absent the other lawyer's consent, with no exception for reporting mental-competency concerns. On exploiting the situation, the opinion explains a lawyer need not press every advantage, especially where doing so is inconsiderate; under Rule 1.2(a)(2) a lawyer does not violate the duty to pursue the client's objectives by treating others with courtesy. The lawyer may resolve the tension between competent representation and not exploiting an impaired adversary by making a confidential report to the Lawyer Assistance Program (LAP) or seeking court oversight, and may withdraw under Rule 1.16(b)(4) if the client insists and the relationship becomes unworkable.

On reporting, the opinion concludes a report to the State Bar is required only when Attorney B knows of an actual rules violation raising a substantial question about Attorney A's honesty, trustworthiness, or fitness, under Rule 8.3(a). If Attorney B lacks that knowledge, she may still report observations to an approved lawyer assistance program (Rule 1.6(b); LAP rules). Where Attorney A's representation is clearly incompetent in violation of Rule 1.1, that may raise a substantial fitness question triggering the Rule 8.3(a) duty; if confidential client information must be disclosed to report, the client's consent is required under Rule 8.3(c). The opinion adds that intra-firm impairment calls for intervention under Rule 5.1(a), that Rule 4.2 does not bar contacting a firm's own clients to switch their representation, and that disclosures made in a LAP support group are confidential and not reportable, citing 2001 FEO 5.

In practice

Under this opinion, the response depends on what the lawyer knows and to whom the lawyer turns. Contacting the represented opposing party is off limits. Reporting to LAP is available whether or not a rules violation is known, while reporting to the State Bar is mandatory only when there is knowledge of a violation that raises a substantial question about fitness, including clear incompetence under Rule 1.1. The opinion treats the disciplinary and assistance tracks as complementary: a State Bar report does not displace a confidential LAP report, and the two address conduct and underlying illness respectively.

Common questions

Q: Can a lawyer tell the opposing party that their lawyer seems impaired?

A: No. Opinion #1 concludes Rule 4.2(a) prohibits communicating about the representation with the represented opposing party, with no exception for reporting a lawyer's mental-competency concerns.

Q: Must a lawyer report a seemingly impaired opposing counsel to the State Bar?

A: Only on knowledge of a violation. Opinions #3 and #5 conclude reporting under Rule 8.3(a) is required only when the lawyer knows of an actual rules violation raising a substantial question about fitness, which clear incompetence under Rule 1.1 may trigger.

Q: Can a lawyer report observations to the Lawyer Assistance Program without knowing of a violation?

A: Yes. Opinion #4 concludes a lawyer may report observations about another lawyer's mental health to an approved lawyer assistance program regardless of whether she knows of a rules violation.

Q: Are disclosures made in a LAP support group reportable?

A: No. Opinion #7 concludes, following 2001 FEO 5, that disclosures made during a LAP support group meeting are confidential and not reportable to the State Bar under Rule 8.3.

Background and rules framework

The opinion interprets several North Carolina rules: Rule 4.2(a) (communication with represented persons, the counterpart to Model Rule 4.2); Rule 8.3(a) and (c) (reporting professional misconduct and its confidentiality limit, the counterpart to Model Rule 8.3); Rule 1.2(a)(2) (means of representation); Rule 1.16(b)(4) (permissive withdrawal); Rule 1.1 (competence); Rule 1.6 (confidentiality); and Rule 5.1(a) (supervisory responsibility). It also relies on the Preamble (Rule 0.1, cmt. [6]), the LAP rules (27 N.C.A.C. 1D, Rule .0613), the discipline rules, and prior opinion 2001 FEO 5.

Citations and references

Rules of Professional Conduct:

• Model Rule 4.2 (communication with represented persons); N.C. Rule 4.2(a)
• Model Rule 8.3 (reporting professional misconduct); N.C. Rule 8.3(a), (c)
• Model Rule 5.1 (responsibilities of supervisory lawyers); N.C. Rule 5.1(a)
• N.C. Rule 1.1 (competence); Rule 1.2(a)(2); Rule 1.6; Rule 1.16(b)(4); Preamble Rule 0.1, cmt. [6]

Other authorities cited:

• 27 N.C.A.C. 1D, Rule .0613 (Rules Governing the Lawyer Assistance Program)
• Rules on Discipline and Disability of Attorneys, 27 N.C.A.C. 1B, Section .0100
• 2001 Formal Ethics Opinion 5: confidentiality of LAP support-group disclosures

See also

• ABA Formal Op. 03-431: Reporting an Impaired Lawyer
• ABA Formal Op. 03-429: Impaired Lawyer in the Firm
• ABA Formal Op. 95-396: The No-Contact Rule (4.2)

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2003-formal-ethics-opinion-2/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Inquiry #1:

Attorney A and Attorney B represent opposing parties in a legal matter. Attorney A's behavior has led Attorney B to suspect that Attorney A has a serious mental health problem (or possible substance abuse problem) that may be interfering with the representation of Attorney A's client. May Attorney B report her concerns directly to Attorney A's client?

Opinion #1:

No, Rule 4.2(a) prohibits communications about the representation with a person a lawyer knows is represented by another lawyer unless the other lawyer consents. There is no exception in the rule for reporting concerns about a lawyer's mental competency to the opposing party.

Inquiry #2:

May Attorney B take advantage of Attorney A's erratic behavior for the benefit of her client? What if her client instructs her to do this?

Opinion #2:

Although a lawyer must competently and diligently represent her clients, she does not have a duty to press every advantage for a client particularly when such conduct is inconsiderate or repugnant. The client establishes the legal objectives of the representation, but the lawyer is primarily responsible for choosing the means by which those objectives are obtained. As noted in Rule 1.2(a)(2), a lawyer does not violate the duty to abide by the client's decisions relative to the objectives of the representation, "...by avoiding offensive tactics, or treating with courtesy and consideration all persons involved in the legal process."

A lawyer may resolve the conflict between the duty of competent representation and the desire not to take advantage of the impaired lawyer by making a confidential report to the Lawyer Assistance Program (LAP) of the State Bar and/or seeking the court's oversight when appropriate. If the client is insistent and the client-lawyer relationship is no longer functional because of the disagreement about tactics, the lawyer may withdraw from the representation pursuant to Rule 1.16(b)(4).

Inquiry #3:

Is Attorney B required to report her observations about Attorney A's mental health to the State Bar or other authority?

Opinion #3:

No, reporting to the State Bar is not required unless a lawyer has knowledge of an actual violation of the Rules of Professional Conduct by the other lawyer. Specifically, Rule 8.3(a) requires a lawyer "who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects [to] inform the North Carolina State Bar or the court having jurisdiction over the matter." The Preamble to the Rules of Professional Conduct, Rule 0.1, cmt. [6], on the other hand, underscores a lawyer's obligations to the legal system and would encourage the lawyer to communicate the situation of a distressed lawyer to LAP.

Inquiry #4:

If Attorney B does not have knowledge that Attorney A has violated the Rules of Professional Conduct, may she report her observations about Attorney A's mental health to LAP or other lawyer assistance program approved by the State Bar?

Opinion #4:

Yes, Attorney B may report, and professionalism would encourage her to communicate her observations about Attorney A's mental health to an approved lawyer assistance program without regard to whether she had knowledge of a violation of the Rules of Professional Conduct by Attorney A. See , e.g., Rule 1.6(b); see also , 27 N.C.A.C. 1D, Rule .0613 of the Rules Governing the Lawyer Assistance Program.

Inquiry #5:

Attorney A's representation of his client is clearly incompetent in violation of Rule 1.1 of the Rules of Professional Conduct. Is Attorney B required to report this conduct to the State Bar? Will a report to LAP satisfy the reporting requirement?

Opinion #5:

Attorney B must report to the State Bar, or a court having jurisdiction, any violation of the Rules that raises a substantial question about another lawyer's fitness to practice law. A lawyer's violation of the duty of competent representation, set forth in Rule 1.1, may raise a substantial question about a lawyer's fitness to practice law and, therefore, be sufficient to trigger the reporting requirement under Rule 8.3(a).

If a disclosure of client confidential information is necessary to make the report, the client's consent must be obtained. Rule 8.3(c). Whether the opposing counsel's conduct alone constitutes confidential client information is debatable. See Rule 1.6(a). The clear incompetence of opposing legal counsel may afford an apparent advantage to Attorney B's client in the matter at hand, and reporting (and thereby possibly terminating) such incompetent representation arguably would be contrary to the client's interests. However, the termination of a somewhat conjectural individual advantage gained through the obvious incompetence of opposing counsel is not the kind of detriment to the client that would normally preclude reporting particularly when the failure to report may produce disproportionate future harm to current and future clients of Attorney A.

The report of misconduct should be made to the Grievance Committee of the State Bar if a lawyer's impairment results in a violation of the Rules that is sufficient to trigger the reporting requirement. The lawyer must be held professionally accountable. See, e.g., Rule .0130(e) of the Rules on Discipline and Disability of Attorneys, 27 N.C.A.C. 1B, Section .0100 (information regarding a member's alleged drug use will be referred to LAP; information regarding the member's alleged additional misconduct will be reported to the chair of the Grievance Committee).

Making a report to the State Bar, as required under Rule 8.3(a), does not diminish the appropriateness of also making a confidential report to LAP. The bar's disciplinary program and LAP often deal with the same lawyer and are not mutually exclusive. The discipline program addresses conduct; LAP addresses the underlying illness that may have caused the conduct. Both programs, in the long run, protect the public interest.

Inquiry #6:

Another lawyer in Attorney B's law firm is demonstrating mental health problems that may be affecting the representation of his clients. What duty does Attorney B have to notify the lawyer's clients? What duty does Attorney B have to report this conduct to LAP or the State Bar?

Opinion #6:

Attorney B should intervene to assist the lawyer and to avoid harmful consequences to the lawyer's clients. See, e.g ., Rule 5.1(a). Such intervention may include, if necessary, notifying the clients and switching their representation to another lawyer in the firm. Rule 4.2 does not prohibit direct communications with the clients of other lawyers in a firm.

For a discussion of reporting another lawyer's mental health problem to LAP or the State Bar, see opinions #3, #4, and #5 above.

Inquiry #7:

Attorney X attends a LAP support group meeting that Attorney A is attending. During the meeting, Attorney A discloses conduct that is otherwise reportable to the State Bar pursuant to Rule 8.3(a). Is Attorney X required to report this conduct to the State Bar?

Opinion #7:

No. 2001 Formal Ethics Opinion 5 holds that disclosures made by a lawyer during a LAP support group meeting are confidential and not reportable to the State Bar under Rule 8.3.