Ethics Question of the Month - February 2020
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I’ve Got a Secret
Bob and Ray are solo practitioners who have known each other for many years and have litigated against each other numerous times. They have a friendly personal and professional relationship, and both have high regard for the other’s legal skills. In a case they are currently litigating against one another, Bob has become increasingly concerned about Ray and his ability to practice law. Ray has uncharacteristically missed deadlines, failed to take basic steps to protect his client’s interests in the proceeding, and made some bizarre and illogical legal arguments.
Additionally, Bob believes he has smelled alcohol on Ray’s breath on multiple occasions. He recently saw Ray at a local restaurant drinking several glasses of wine at lunch before he encountered Ray at a docket call that afternoon. Bob is alarmed by what he is witnessing and is convinced that Ray is sufficiently impaired by alcohol – and perhaps mental health issues as well – to the point that he is unable to competently represent clients in his current condition. Bob considers whether he should report Ray to either the Chief Disciplinary Counsel’s office (CDC) or the Texas Lawyer’s Assistance Program (TLAP), or both.
Which of these is most accurate?
A. Bob is required to report the ethics violation to CDC, but contacting TLAP regarding Ray’s apparent alcohol problems is discretionary.
B. Bob must notify both CDC and TLAP of Ray’s behavior.
C. Bob is not required to report Ray’s behavior because he does not know for certain whether Ray has an alcohol problem and reporting Ray’s behavior could disadvantage Bob’s client in the current litigation.
D. Bob must report Ray’s behavior, but he can choose whether to report it to either CDC or TLAP.
The pertinent rule here is Texas Disciplinary Rule of Professional Conduct 8.03, which reads in part:
Reporting Professional Misconduct.
(a) 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 is whether Ray’s conduct raises a “substantial question” as to Ray’s “honesty, trustworthiness or fitness as a lawyer in other respects.” Clearly, Ray’s behavior meets that threshold. Being under the influence of alcohol is never appropriate when appearing in court or otherwise representing a client; however, there can be scenarios where the evidence of impairment is significantly less than what Bob has witnessed here. Note that official 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.” In other words, Bob could have witnessed fewer instances of potential impairment by Ray and yet still have an obligation to act under our Rules. In general, this 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, such as chemical dependency, or mental illness. The Rule errs on the side of reporting where the conduct observed otherwise meets its threshold requirement.
Likewise, missing deadlines, making illogical arguments, and failing to protect the client’s interests in a court proceeding does not meet the minimal standard expected of attorneys. See Rule 1.01(a) (“A lawyer shall not accept or continue employment in a legal matter which the lawyer knows or should know is beyond the lawyer's competence”) and Rule 1.01(b) (a lawyer should not “ neglect a legal matter” or “frequently fail to carry out completely the obligations that the lawyer owes to a client or clients”).
Moreover, Bob is witnessing a recent and significant decline in Ray’s competence in practicing law that – given Bob’s long familiarity with Ray’s abilities as a lawyer – indicates that his behavior here meets the “substantial” requirement.
So to whom is Bob required to report Ray’s behavior? While Rule 8.03(a) requires him to “inform the appropriate disciplinary authority,” that requirement is subject to the exceptions of paragraphs (c) and (d), which read:
(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).
(d) This rule does not require disclosure of knowledge or information otherwise protected as confidential information:
- (1) by Rule 1.05 or
- (2) by any statutory or regulatory provisions applicable to the counseling activities of the approved peer assistance program.
Texas lawyers are often surprised to discover that there is narrow exception to the general rule 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 an approved peer assistance program pursuant to this Rule.
Therefore, Rule 8.03(c) allows Bob to choose between CDC and TLAP when fulfilling his duty to report Ray’s conduct, which clearly implicates alcohol abuse.
Even though many lawyers will assume that A is the right answer, D is the most accurate response.
EDITOR’S 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.