Author: Lindsey Welfley

By Mark J. Fucile

Both academic research and the popular legal media have increasingly discussed the “wellness” challenges facing the legal profession.[i]  At the same time, the organized bar both nationally and locally have undertaken significant initiatives to better address these challenges.[ii]  Although precise statistics are not available, anecdotal evidence from case reports suggests that lawyer “impairment” in one form or another puts lawyers at disciplinary risk and firms at malpractice risk.[iii]

This article surveys two related questions for law firm risk management within the context of lawyer impairment:  (1) what are a law firm’s supervisory responsibilities for lawyers[iv] who may be impaired? and (2) what are the reporting obligations of law firms for an impaired lawyer?[v]  With each, the word “impairment” is used in the broadest sense of a condition—regardless of the cause—that affects a lawyer’s ability to competently represent clients.[vi]

Supervisory Duties

Idaho Rule of Professional Conduct (“RPC”) 5.1(a) outlines the regulatory duties of law firm partners and others with “comparable managerial authority” for creating an ethical infrastructure within their firms.  To account for variations in firm size, number of offices and practice fields, RPC 5.1(a) is intentionally both broad and general:

                “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.”[vii]

RPC 5.1(b), in turn, addresses the responsibilities of a direct supervisor—regardless of the lawyer’s position within the firm involved:

                “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.”

Similarly, the Idaho Supreme Court in Stephen v. Sallaz & Gatewood, Chtd., 150 Idaho 521, 527, 248 P.3d 1256,1262 (2011), emphasized that a law firm is responsible for any malpractice committed by its lawyers:

                “Idaho’s corporate code applies here and it is clear that a corporation is liable for the negligent or wrongful act of employees acting on behalf of the corporation.”

Although neither of these regulatory or corporate codes address lawyer impairment specifically, both make clear that client work must be undertaken competently and within the standard of care.  RPC 1.1 defines the former:

                “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”[viii]

Case law defines the latter:

                “As a matter of law, an attorney owes his client a duty to use and exercise reasonable care, skill, discretion, and judgment in the representation.”[ix]

The comments to RPC 5.1 counsel that firms should take proactive steps that reasonably anticipate common risks and that they cannot “turn a blind eye” when problems arise.

For its part, Comment 2 gives examples of proactive steps firms should generally take to address common risks:  “Such policies and procedures include those designed to detect and resolve conflicts of interest, identify dates by which actions must be taken in pending matters, account for client funds and property and ensure that inexperienced lawyers are properly supervised.”

And Comment 3 notes the reality that problems may occur and cannot simply be ignored:  “In any event, the ethical atmosphere of a firm can influence the conduct of all its members and the partners may not assume that all lawyers associated with the firm will inevitably conform to the Rules.”

Although these are comments to a regulatory rule, then-Justice Jim Jones, in his concurring opinion in a legal malpractice case, acknowledged the practical relationship between the regulatory rules and the standard of care:  “The contours of an Idaho lawyer’s duty of care are generally spelled out in the Idaho Rules of Professional Conduct[.]”[x]

Given better documentation of lawyer impairment issues and the more robust resources now available for law firms in this area, firms will likely be increasingly expected to implement policies and procedures for identifying and assisting firm lawyers to both prevent and mitigate impairment-related issues.  The comments to RPC 5.1 suggest that such policies and procedures may be tailored to a firm’s particular circumstances, with Comment 3 observing:  “In a small firm of experienced lawyers, informal supervision and periodic review of compliance with the required systems ordinarily will suffice . . . [while] [i]n a large firm . . ., more elaborate measures may be necessary.”

In sum, the increasing recognition of the problem of impairment within the legal profession means that law firms should incorporate protocols appropriate for firm size and practice into their risk management plans.  With the increasing recognition of the problem has also come the availability of resources for firms of all sizes from national organizations such as the ABA and local ones such as the Idaho Lawyers Assistance Program.  Malpractice carriers are also another source of practical tools.  Just as law firms cannot ignore conflict checks or cyber security risks, they need to frankly acknowledge and address the issue of lawyer impairment.

Reporting

RPC 8.3(a) states a lawyer’s duty to report professional misconduct:

                “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, shall inform the appropriate professional authority.”

Comment 3 to RPC 8.3 outlines the contours of the reporting requirement:

                “If a lawyer were obliged to report every violation of the Rules, the failure to report any violation would itself be a professional offense. Such a requirement existed in many jurisdictions but proved to be unenforceable.  This Rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent.  A measure of judgment is, therefore, required in complying with the provisions of this Rule.  The term ‘substantial’ refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware.  A report should be made to the bar disciplinary agency unless some other agency, such as a peer review agency, is more appropriate in the circumstances.  Similar considerations apply to the reporting of judicial misconduct.”

The ABA in Formal Opinion 03-429 (2003) wrestled with the interplay between addressing impairment issues internally and reporting under ABA Model Rule 8.3—on which Idaho’s variant is based.  In what can be a gray area, the opinion offers prudent and practical guidance.

Formal Opinion 03-429 divides the duty to report—or not—into three broad categories.  First, the opinion counsels that there is no duty to report if the impairment has not resulted in a violation of the professional rules.  The opinion puts it this way:  “[I]f the firm reasonably believes that it has succeeded in preventing the lawyer’s impairment from causing a violation of a duty to the client by supplying the necessary support and supervision, there would be no duty to report under Rule 8.3(e).”[xi]  For example, if a firm lawyer raised—or was confronted with—an issue that had the potential to impair the lawyer’s representation of a client but no harm to the client resulted, then there would be no duty to report.  Even if there is no duty to report, however, the firm should still take whatever remedial steps are appropriate to assist the lawyer and to protect any clients affected.

Second, the opinion concludes that there is no duty to report if the condition that has caused impairment has resolved.  The opinion uses the following example:  “[I]f partners in the firm and the supervising lawyer reasonably believe that the previously impaired lawyer has resolved a short-term psychiatric problem that made the lawyer unable to represent clients competently and diligently, there is nothing to report.”[xii]  The logic in this scenario is that the lawyer has regained the requisite fitness to practice law moving forward.  Although this may alleviate the need to report the lawyer to a regulatory authority, the firm would still have a duty under the “communication rule”—RPC 1.4—to inform current clients impacted by any material errors the lawyer made during the transitory period of impairment.  Another ABA opinion—Formal Opinion 481 (2018)—addresses this duty in considerable detail.  Depending on the circumstances, Formal Opinion 03-429 suggests the firm may also have a duty to monitor the lawyer’s work for at least a reasonable period going forward to assure that the impairment has not reoccurred.

Third, the opinion finds that if a lawyer’s impairment renders the lawyer unable to competently represent clients but the lawyer insists on doing so anyway, the firm must report.[xiii]  In this situation, the opinion concludes that the firm cannot simply replace the lawyer without telling the clients affected—although it suggests there is a balance to be struck between informing clients and respecting the privacy of the lawyer involved.  The opinion suggests in this regard:  “In discussions with the client, the lawyer must act with candor and avoid material omissions, but to the extent possible, should be conscious of the privacy rights of the impaired lawyer.[xiv]  The opinion also finds that, again depending on the circumstances, management and supervisory lawyers may have an obligation to take appropriate steps to mitigate the consequences.

Formal Opinion 03-429 strikes a balance between helping impaired lawyers and protecting clients.  The opinion offers firms practical guidance in navigating what is always a difficult situation.

Summing Up

With the increasing recognition of impairment issues within the legal profession and the corresponding availability of resources to address them, law firms should incorporate protocols for dealing with impairment issues appropriate for firm size and practice into their risk management plans.

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            [i] See, e.g., Patrick R. Krill, Ryan Johnson and Linda Albert, The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys, 10, No. 1 J. Addict. Med. 46 (2016); Christine Simmons, Law Firms Face Malpractice Risk Over Substance Abuse, Poor Mental Health, available at www.propertycasualty360.com, Dec. 4, 2018.

            [ii] See, e.g., ABA Working Group to Advance Well-Being in the Legal Profession, Report 105 to the 2018 Mid-Year Meeting of the House of Delegates (Feb. 2018); Idaho Lawyer Assistance Program, available at https://isb.idaho.gov/member-services/programs-resources/lap/.

            [iii] See, e.g., Matter of Tway, 123 Idaho 59, 62, 844 P.2d 688, 691 (1992) (personal and emotional problems led to issues underlying imposition of lawyer discipline); National Union Fire Ins. Co. of Pittsburgh, PA v. Wuerth, 540 F. Supp.2d 900 (S.D. Ohio 2007) (legal malpractice claim painted against backdrop of lawyer impairment issues).

            [iv] Although this article focuses on supervision of lawyers, law firms are also generally responsible for supervising non-lawyer employees.  See generally Matter of Jenkins, 120 Idaho 379, 816 P.2d 335 (1991) (discussing regulatory responsibility for non-lawyers under RPC 5.3); Stephen v. Sallaz & Gatewood, Chtd., 150 Idaho 521, 248 P.3d 1256 (2011) (discussing malpractice liability for law firm employees).

            [v] ABA Formal Opinion 03-431 (2003) addresses issues surrounding the duty to report a non-firm lawyer’s impairment.

            [vi] Black’s Law Dictionary (11th ed. 2019), for example, defines “impairment” as:  “The quality, state, or condition of being damaged, weakened, or diminished; a condition in which part of a person’s mind or body is damaged or does not work well[.]”

            [vii] Idaho RPC 5.1 is patterned on ABA Model Rule 5.1.

            [viii] RPC 1.3 addresses the related concept of “diligence.”

            [ix] Sun Valley Potatoes, Inc. v. Rosholt, Robertson & Tucker, 133 Idaho 1, 4, 981 P.2d 236, 239 (1999).

[x] Bishop v. Owens, 152 Idaho 616, 622, 272 P.3d 1247, 1253 (2012)

            [xi] ABA Formal Op. 03-429, supra, at 7.

            [xii] Id. at 5.

            [xiii] Id.

[xiv] Id. at 5-6.

By David E. Kerrick

This morning I realized I have been in the business of the practice of law for 40 years.  I graduated from the University of Idaho College of Law in December 1979.  It has been an amazing journey!  I wonder what the next 40 years will look like.

Many things have changed in four decades.  But the people are still basically the same – the clients, the co-workers, the adversaries, and the professional colleagues.  What has changed and what has driven change is technology.

In the beginning of my practice, my day would start by getting the mail at the post office.  Letters and court pleadings would arrive, all with the necessary postage.  Legal research was done in a law library with large impressive books.  I would respond to the phone messages written up by the secretary with the use of a black desk phone.  Mountain Bell was the only carrier available and calling Boise was a long-distance call.

My secretary could take my dictation in shorthand and would type my words up on a fancy IBM Selectric typewriter.  My scheduling calendar was a spiral notebook, month-at-a-glance format, with 18 months’ worth of capacity.

To do research on my clients or the opposing party was a mysterious process of interviews and detective work finding records at various locations.  Client files would grow and grow.  When the files were closed, they were placed in a dead file storage unit.  The dead files grew like a cancer.  The physical office itself was where all the work had to be done.  When I was away from the phone, I was away.  Back then the life of George Jetson seemed farfetched^.1

As time has passed, communication has changed.  Paper letters have all but gone the way of the dinosaur.  Now, the only things I find when I go to the post office are a few bills and a bunch of junk mail.  Email is now the preferred method of communication by most.  In the mid-1990s, I had heard of the internet but did not have a clue as to what it was or how it worked.  When I purchased my first laptop computer, my nine-year-old daughter taught me how to use Windows.  My first cell phone was the size of a brick and had an antenna.  There was no camera in it. 

I am not yet there, but many lawyers are now putting their files in the cloud.  Recently, I have started keeping my calendar on an app that I can look at with my cell phone.  Before I see a new client now, I usually have a stack of information that my assistants print from the internet, such as property records, obituaries, court repositories, Facebook profiles, news articles, etc. 

Legal research has also become quicker with the internet.  In fact, I can find an Idaho statute quicker through Google than I can find it through the index in my Idaho Code set.

These days it is difficult to find a secretary who knows shorthand.  I put my last IBM Selectric on Craigslist for free.  It took over a month to find a taker.

I am amused now when I go to a conference.  The speaker is standing up front giving a PowerPoint presentation and everyone in attendance is looking at their phone or their tablet checking their email or surfing the internet.  And it isn’t even considered rude.  It’s just normal multitasking in the 21^st Century. 

Every new device that automates something or makes our work faster and more efficient simultaneously increases our workload.  The expectation now seems to be that I sit at my computer all day long, including nights and weekends, and respond instantly to one email after another.  How I miss the days when I could rely on the mail to give me at least an excused three-day delay. 

The challenge today, and into the future, will be mastering this endless transition of new technology. 

What will the law office of the future look like?  Even today, people can telecommute, and many people are capable of working “remotely.”  Like George Jetson talking to his boss, Mr. Spacely, on the videophone, 2062 has already arrived!  Our staff members do not need to be in the same location anymore.  The secretary with shorthand is now replaced by an app on your phone that will do voice-to-text.

I can see the future now.  My office will soon be contained entirely in my phone.  All of my files and law books will be stored in the cloud.  I will meet and talk with everyone – employees, clients, colleagues, the court – in real-time, face-to-face on my phone without leaving my house.  Most mornings I won’t even need to put on my pants.

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1. George Jetson is the lead character in a television cartoon series that first aired in 1962. George and his family lived 100 years in the future, that is 2062. The Jetsons talk on telephones which have a TV screen picture of the other person on the call. George’s boss is Mr. Spacely, owner of Spacely Space Sprockets. A videophone call from Mr. Spacely typically starts with him yelling at George for some work performance issue.

By Major Stephen A. Stokes

Members of the 116^th Cavalry Brigade Combat Team (CBCT) Brigade Legal Section (BLS), Idaho Army National Guard, deployed to the U.S. Army National Training Center in Fort Irwin, California from May 24, 2019, to June 20, 2019.  The Legal Section was part of a much larger exercise, which saw over 4,000 Soldiers and Airmen and over 2,000 pieces of equipment travel to California for a large-scale, simulated-combat experience.[i]

The rotation at the National Training Center was a culminating training event for the 116th CBCT as it prepares for deployment in the spring of 2020.  This article will briefly describe the National Training Center (NTC), the Brigade Legal Section’s composition and role in a training exercise like NTC, and what is next for the legal section.

The National Training Center, which has an area roughly the size of Rhode Island, is the U.S. Army’s premier training center.  NTC rotations “incorporate a complex scenario design laden with social, ethical, and moral dilemmas; the goal of which is to develop leaders while exposing them to multifaceted problems.  Units training at NTC today face a complex hybrid threat.  Units must face a near-peer opposing force, while taking on an insurgent force.”[ii]

The National Training Center allows units to “train under the most war-like conditions available.”[iii]  It was under these conditions that the 116^th CBCT honed its craft.

The BLS consisted of Major Steve Stokes, Brigade Judge Advocate, Captain Michael Winchester, Trial Counsel, Captain Nate Peterson, Operational Law Attorney, First Lieutenant Anil Kimball, Chief of Administrative Law, Staff Sergeant Peter Scheri, Paralegal NCOIC, and Sergeant Kenneth Kalim, Paralegal Soldier.  In addition, each of the nine battalions making up the 116^th CBCT deployed with a Paralegal Specialist.

The legal team is of vital importance to a commander in the field.  War plans, initiatives, and decisions can have far-reaching strategic and policy implications in complex operational environments.[iv]  The Brigade Legal Section honed its skills by advising on a wide array of legal issues including the law of  armed conflict, rules of engagement, lethal and nonlethal targeting, treatment of detainees and noncombatants, fiscal law, foreign claims, contingency contracting, international rule of law, the conduct of military investigations, and military justice.[v]  Members of the BLS also served as staff officers on boards, centers, cells, and working groups, where they fully participated in the military planning process.[vi]

The 116^th CBCT BLS reflect the diversity of experience inherent in the National Guard; More than two-thirds of the Soldiers and Airmen in the Idaho National Guard are part-time citizen-soldiers.  These Soldiers and Airmen have the triple burden of excelling in their civilian careers, serving their State and Nation, and upholding their commitments to their families.

The 116^th BLS exemplifies this can-do spirit: CPT Nate Peterson is a busy and successful private practitioner in Boise; CPT Mike Winchester is a deputy prosecuting attorney serving the people of Jefferson County; 1LT Anil Kimball recently passed the Idaho bar examination and is beginning his civilian career after completing his military education, and SSG Peter Scheri is an electrician in Meridian.

Through the crucible of the 2019 NTC rotation, the BLS came together as a team, learned best practices from the best legal trainers in the U.S. Army, and gained new Soldier skills and determination that the members will bring home to their civilian employers and communities.

Next spring, the 116^th CBCT will participate in an exercise called Defender 2020, which will include a month-long deployment to Germany.[vii]  One purpose of Defender 2020 is to show that an armored brigade combat team can deploy from the United States, draw equipment, and rapidly build combat forces in Europe.[viii]  During the exercise, the brigade will also conduct training in a high-intensity European scenario fight.[ix]  The BLS will be a vital part of this deployment, ensuring that the 116^th CBCT follows the rule of law and executes its mission in a legal and ethical manner.

“Stokes Photo 1” Cutline – The 116^th CBCT Brigade Legal Section in action.  From left to right: CPT Nate Peterson, Operational Law Attorney, CPT Mike Winchester, Trial Counsel, MAJ Steve Stokes, Brigade Judge Advocate, 1LT Anil Kimball, Chief of Administrative Law, and SGT Kenneth Kalim, Paralegal Soldier.  Not Pictured, SSG Peter Scheri, Brigade Paralegal NCOIC.  Photo Credit: 1LT Anil Kimball.

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[i] Steve Dent, Idaho National Guard finishes off a Successful NTC Rotation at Fort Irwin, KIVI Boise, www.kivitv.com (last visited on September 3, 2019).

[ii] https://en.wikipedia.org/wiki/Fort_Irwin_National_Training_Center

[iii] Lt. Col. Chris Borders, 116^th Soldiers Return Home after Month-Long Exercise, Clearwater Tribune, www.clearwatertribune.com (last visited September 3, 2019) (“Borders Article”).

[iv] U.S. Army Field Manual 1-04, Legal Support to the Operational Force, Paragraph 1-1.

[v] Id.

[vi] Id.

[vii] Borders Article.

[viii] Id.

[ix] Id.