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Bar News - May 17, 2013

The Gray Area: What to Do When ‘Senior Moments’ Accumulate


The View from Below: An Associate’s Perspective

By Nathan Fennessy

An aging bar creates both great opportunities and great responsibilities for young lawyers.

With the number of lawyers reaching retirement age far outpacing new members being admitted to the bar, there are tremendous opportunities for young lawyers in New Hampshire to develop experience and business, as well as to assume leadership roles in bar and civic associations.

But the aging bar also creates greater responsibilities for young lawyers, who must assume part of the responsibility for ensuring that senior members maintain the requisite physical and mental capabilities to continue practicing law.

Partners and other supervisory attorneys may need to decide whether their obligations under Rule 5.1 require them to take additional “reasonable efforts” to ensure senior lawyers in the firm are complying with the Rules. This may result in firms putting younger attorneys in the uncomfortable position of having to “look over the shoulders” of more senior attorneys, to ensure they are fit to practice and are providing competent representation.

A younger lawyer may be required to consider whether he should continue deferring to the legal judgment of an older attorney whose mental faculties appear to be slipping. Or, a young associate might be faced with deciding whether to report an aging opposing counsel who has repeatedly missed hearings and deadlines and is thus harming his client’s interests.

The changing demographics of the bar have put some challenging questions before young attorneys, and the frequency with which these challenges present themselves is only expected to grow.

Lester the Lawyer, a well-known elder statesman of the bar, has a problem. Lester increasingly forgets details of cases, neglects to show up for events, and fails to develop strategies that make sense for his client’s interests. Perhaps it’s caused by substance abuse, perhaps hardening of the arteries. The cause is unknown, but the consequences all too obvious: Client interests are repeatedly being harmed.

Lester’s partners don’t want to confront him, out of concern for his pride (and the possible loss of revenue for the firm).

What Do the Rules Say About Lester’s Situation?

"Competency" is the first of the Rules of Professional Conduct, and its placement reinforces its primacy. Minimum competency includes paying sufficient attention to details and schedules (Rule 1.1(b)(5)), and planning as necessary to avoid any harm to the client’s interests (Rule 1.1(c)(4)). Lester has repeatedly failed to meet these minimums. If the condition continues, he is unfit to practice law, should terminate his existing representations and decline new ones. Rule 1.16. Lack of competence in representation is a breach of Rule 1.1(a); Rule 8.4(a) makes clear it is also professional misconduct.

Similar rules apply to our jurists, through the Code of Judicial Conduct (Supreme Court Rule 38), Rule 2.5(a)(a judge shall competently perform his duties).

What Do the Rules Require of Lester’s Partners?

An attorney who knows that Lester has acted incompetently – and knows it happens often enough to raise a "substantial question" about his fitness as a lawyer – has a mandatory duty to inform the "appropriate professional authority," according to Rule 8.3 (a).

There is, thankfully, an element of judgment embedded in this requirement. Suspicion of ineptness may well prompt an attorney to initiate a voluntary report. It is only knowledge, however, that establishes the mandatory duty. Further, a sliding scale is in place: If Lester’s error is merely missing a single court date, it might hurt a particular client’s case, but does not raise a "substantial question" about his fitness. No duty arises.

Attorneys have a mandatory reporting obligation regarding any knowledge of the condition of judges, as well. Rule 8.3(b). Judges, too, with knowledge or reasonable belief raising substantial questions about another jurist’s fitness, must take "appropriate action." See Judicial Conduct Rules 2.14, 2.15(A), (C).

Why Must We Inform on Each Other?

A failure to report is itself professional misconduct. Why such a harsh requirement? Shouldn’t partners be able to cover for one another?

In the book, The Law of Lawyering, the authors identify several justifications for the requirement. First, lawyers are in the best position to know if other lawyers are in trouble. They see them daily, and they know most quickly if something is askew. Only if they report troubles can the public be protected from Lester’s potential misdeeds.

Further, the thinking goes, the public’s awareness that bar members can – and must – report on each other will increase the public’s confidence in and respect for the integrity of the bar and the justice system as a whole.

Finally, active reporting and investigation can help the subject lawyer, by imposing supervision and rehabilitation. A cover-up only enables a continued problem.

Applying the Principles

All attorneys are bound by the mandatory "informer" rules, but it can be argued that partners in law firms and lawyers with comparable managerial authority are particularly responsible. They have a non-delegable duty to make reasonable efforts to see the firm’s lawyers are fit to practice law. Those lawyers are responsible for Lester’s violations if they knew of the conduct but failed to take reasonable remedial measures. Rules 5.1(a), (c)(2).

A report goes to an "appropriate professional authority." In a particular case, that can be the trial court where the errors appear. It can also include, of course, the Attorney Discipline Office. It can also include, in particular circumstances, a group such as the New Hampshire Lawyers Assistance Program. If the cause of the problem appears to be alcoholism or a similar addiction problem, for instance, and if the troubled lawyer agrees to enter an LAP program, a "substantial question as to that lawyer’s fitness" might no longer exist – at least until the results of the intervention are found inadequate.

The duty of reporting another lawyer arises when one has knowledge of the lawyer’s incompetence, such that it raises a substantial question of his fitness to practice law. Though mandatory, the requirement contains some flexibility and discretion within it.

Our expectations of lawyers and the standards they must meet are constantly evolving. The painful duty of watching out for others’ failures will continue to evolve, as bar members, and the disciplinary authorities, determine how strictly to enforce the requirement.

Editor’s Note: Bar News welcomes article ideas or proposals on the subject of retiring lawyers, including legal, financial and emotional aspects of winding down a law practice; options for public service for retired or soon-to-be-retired lawyers; and retirement lifestyle options. Contact Managing Editor Kristen Senz with your ideas or for more information.

If you are in doubt about the status of any meeting, please call the Bar Center at 603-224-6942 before you head out.

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