The State Bar seeks public comment on Proposed Revised Formal Opinion No. 2021-206 (Colleague Impairment). Length of comment period: 90 days.
Deadline: June 7, 2024, 11:59 p.m.
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.
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 publishes proposed formal opinions for public comment. (See State Bar Board of Trustees Resolutions July 1979 and December 2004. See also, Board of Trustees Resolution November 2016.)
This opinion was previously approved by the Board of Trustees Regulation and Discipline Committee on May 13, 2021. As part of that opinion, COPRAC advised that there was no version of Rule of Professional Conduct 8.3 in California. However, effective August 1, 2023, the California Supreme Court approved new Rule of Professional Conduct 8.3. As proposed for public comment, this opinion is revised to include an analysis of newly adopted rule 8.3 and a potential footnote change to reference to an opinion that is also currently circulating for public comment, proposed Formal Opinion Interim No. 20-0002 (Succession Planning). Only if that opinion is adopted by the Board of Trustees will that footnote be included. Proposed Formal Opinion Interim No. 20-0002 is also posted for a 90-day public comment period.
Proposed Revised Formal Opinion No. 2021-206 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 the 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, 8.3, and 8.4 of the Rules of Professional Conduct of the State Bar of California; Business and Professions Code sections 6068, subdivisions (e)(1) and (m), and 6103.5, subdivision (a).
The opinion digest states: This opinion addresses mental impairments that impede a lawyer’s fitness to competently and diligently engage in the practice of law in accordance with the rules and the State Bar Act. A lawyer’s impairment does not excuse that lawyer’s compliance with the rules 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, promptly taking reasonable remedial action to prevent or mitigate any adverse consequences resulting from an impaired lawyer’s actions, and reporting the impaired lawyer’s conduct to the State Bar or an appropriate tribunal. 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 December 1, 2023, meeting, and in accordance with its procedures, COPRAC tentatively approved Proposed Revised Formal Opinion No. 2021-206 for a 90-day public comment distribution.
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Committee on Professional Responsibility and Conduct
June 7, 2024, 11:59 p.m.