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    Forgetfulness Alone Does Not Violate Ethics Rules

    Cognitive issues do not always result in professional misconduct, but the colleagues of a lawyer struggling with forgetfulness have a duty to explore the matter and to protect the firm’s clients.

    Dean R. Dietrich

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    Question

    One of my partners seems to be struggling with his memory and recollection of events. Must I report him to the Office of Lawyer Regulation?

    Answer

    You do not have an immediate obligation to report your partner to the Office of Lawyer Regulation (OLR). You do have an obligation to review this matter further and take appropriate steps to ensure that no clients are harmed by the apparent memory lapses of this lawyer. You may also have an obligation to take additional steps to protect clients such as insisting on an assessment by medical professionals and removing the lawyer from cases on which he could have trouble representing the client.

    Dean R. Dietrichcom ddietrich ruderware Dean R. Dietrich, Marquette 1977, of Ruder Ware, Wausau, is chair of the State Bar Professional Ethics Committee.

    Trying to determine whether one’s law partners are experiencing some level of impairment that affects their ability to practice law and represent clients is certainly a very difficult area. A recent opinion from the Virginia State Bar Ethics Committee (Opinion 1886, Dec. 2016) acknowledges that a lawyer must take reasonable steps to prevent a partner from violating his or her ethical obligations to clients or violating the Rules of Professional Conduct. SCR 20:5.1 of the Wisconsin Rules of Professional Conduct addresses this issue by providing as follows:

    SCR 20:5.1 Responsibilities of partners, managers, and supervisory lawyers. (a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.

    (b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.

    (c) A lawyer shall be responsible for another lawyer’s violation of the Rules of Professional Conduct if:

    (1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or

    (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

    You do have an obligation to review this matter further and take appropriate steps to ensure that no clients are harmed by the apparent memory lapses of this lawyer.

    What is important about this rule is that the partners must take steps to ensure that all lawyers and staff members are acting appropriately and in full compliance with the requirements of the Rules of Professional Conduct. There is not an obligation to report on the medical condition of a lawyer if the lawyer has not engaged in any type of professional misconduct. That obligation falls under SCR 20:8.3, but only if a lawyer knows that another lawyer has engaged in conduct that is considered a violation of the rules and directly relates to the fitness of the lawyer to practice and the client gives consent to the disclosure of information if a client representation is involved.

    By itself, the suggestion that a lawyer is suffering from initial stages of forgetfulness or dementia does not support a conclusion that the lawyer has engaged in misconduct. Although it is likely that there is no obligation to report the situation to the OLR or other lawyer regulatory agency, there is certainly an obligation to address the situation to protect the interests of the firm’s clients in all respects. This may involve speaking with and evaluating the lawyer with diminished capacity to determine if he or she is competent to provide service to clients.

    Need Ethics Advice?

    As a State Bar member, you have access to informal guidance and help in resolving questions regarding Wisconsin’s Rules of Professional Conduct for Attorneys.

    Ethics Hotline: To informally discuss an ethics question, contact the State Bar ethics counsels, org tpierce wisbar Timothy Pierce or org akaiser wisbar Aviva Kaiser. They can be reached at (608) 229-2017 or (800) 254-9154, Monday through Friday, 9 a.m to 4 p.m.