070114 KSEO, 14-01

Case DateJuly 01, 2014
CourtKansas
No. 14-01
KBA Legal Ethics Opinion No. 14-01
Kansas Ethics Opinions
July 1, 2014
          J. Nick Badgerow, Chair.          TOPIC: Duty to report attorney memory lapses.          DIGEST: A lawyer is not required to report another lawyer to the Disciplinary Administrator unless the lawyer has knowledge of an action, inaction or conduct of the other lawyer which constitutes misconduct under the Kansas Rules of Professional Conduct. Rather, in the event there are memory lapses, cognitive deteriorations, or other potentially disabling conditions, the subject lawyer should be referred to the Kansas Lawyers Assistance Program or other suitable service.          Date of Request: June 11, 2014.          REFERENCES: Rules 8.3 (Duty to Report) and 1.1 (Competence), Kansas Rules of Professional Conduct ("KRPC"); and Supreme Court Rules 206 (KALAP), and 207 (Duties of Bar and Judiciary).          FACTS:          Law firm had a partner with "possible cognitive degeneration," evidenced by memory lapses. These lapses include an inability to dial in to a conference call, a client reporting that the lawyer required a re-orientation to the facts of the representation, and multiple staff members reporting the lawyer's failure to recall prior discussions. No violations of the KRPC are reported, but the law firm believes that the subject lawyer's perceived memory lapses "could impact clients."          The subject lawyer has now left the law firm, but continues to practice. The law firm questions whether - now that the lawyer has left the firm — it has a duty to report the subject lawyer to the Kansas Disciplinary Administrator under Rule 8.3.          This Opinion assumes the following:
(a) The subject lawyer has, or is perceived to have possible cognitive deterioration as evidenced by memory lapses;
(b) To date, these memory lapses have not resulted in losses to clients or in any actual violation of the KRPC.
         QUESTION:          Does a lawyer have an ethical obligation to report another lawyer's perceived cognitive deterioration or memory lapses, in the absence of an actual violation of the KRPC?          ANALYSIS:          Rule 8.3(a), KRPC, provides as follows:
(a) A lawyer having knowledge of any action, inaction, or conduct which in his or her opinion constitutes misconduct of an attorney under these rules shall inform the appropriate professional authority, [1]
         This Rule contrasts strikingly with the Model Rule adopted in...

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