The State Bar seeks public comment on Proposed Formal Opinion Interim No. 14-0001 (Colleague Impairment)
Comments should be submitted using the online Public Comment Form. The online form allows you to input your comments directly and can also be used to upload your comment letter and/or other attachments.
Deadline: November 25, 2020
The State Bar Standing Committee on Professional Responsibility and Conduct (COPRAC) is charged with the task of issuing advisory opinions on the ethical propriety of hypothetical attorney conduct. In accordance with applicable State Bar policy and procedure, the Committee shall publish proposed formal opinions for public comment (See, State Bar Board of Trustee Resolutions July 1979 and December 2004. See also, Board of Trustee Resolution November 2016).
On May 10, 2018, the California Supreme Court issued an order approving 69 new Rules of Professional Conduct, which went into effect on November 1, 2018. Information about the new rules is available at the State Bar website. Proposed Formal Opinion Interim No. 14.0001 interprets the new Rules of Professional Conduct.
Proposed Formal Opinion Interim No. 14‑0001 considers: What ethical obligations does a lawyer have when the lawyer or a lawyer in that lawyer’s law firm has violated, is violating or will violate California’s Rules of Professional Conduct or the State Bar Act in the course of representing a client as a result of the lawyer’s possible mental impairment?
The opinion interprets rules 1.1, 1.2, 1.3, 1.4, 1.4.1, 1.6, 1.7, 1.10, 1.16, 5.1, 5.2, and 8.4 of the Rules of Professional Conduct of the State Bar of California; Business and Professions Code sections 6068(e)(1), 6068(m), and 6103.5(a).
The opinion digest states: Mental impairment in this opinion refers to the diminution of a lawyer’s mental capacity necessary to competently and ethically perform legal services as required under the California Rules of Professional Conduct and the State Bar Act. A lawyer’s impairment does not excuse that lawyer’s compliance with the California Rules of Professional Conduct and the State Bar Act. An impaired lawyer’s conduct can also trigger obligations for the impaired lawyer’s subordinates, supervisors and other colleagues who know of the impaired lawyer’s conduct. These ethical obligations may include, but are not limited to, communicating significant developments related to the lawyer’s conduct to the client and promptly taking reasonable remedial action to prevent or mitigate any adverse consequences resulting from an impaired lawyer’s actions. The required scope of each lawyer’s action depends on the nature of the client’s representation, the severity of the impaired lawyer’s unethical conduct, whether the client has been harmed or will be harmed by the impaired lawyer’s conduct, the nature of the lawyer’s impairment, the size of the law firm and the resources available, and each lawyer’s position within the firm.
At its July 24, 2020 meeting and in accordance with their procedures, the State Bar Standing Committee on Professional Responsibility and Conduct tentatively approved Proposed Formal Opinion Interim No. 14-0001 for a 90-day public comment distribution.
Standing Committee on Professional Responsibility and Conduct
November 25, 2020