Kansas lawyers have been advised that a law firm in that state “has no duty” to report to officials about a lawyer who is believed to have “memory lapses” unless there are ethics issues.
The opinion from the Kansas Bar Association’s ethics committee related to an attorney who left a law firm but kept on practicing law.
“To date, these memory lapses have not resulted in losses to clients or in any actual violation of the KRPC [Kansas Rules of Professional Conduct],” according to the recent opinion.
Former colleagues were concerned about the ex-partner apparently losing some of his mental abilities. The ex-colleague had “possible cognitive degeneration” and the law firm was concerned that these apparent memory lapses “could impact clients.”
Instead, the bar association suggested that the reporting attorneys consider notifying the Kansas Lawyers Assistance Program (KALAP). That organization would then be responsible for evaluation and assistance. Or, his condition could be reported to another “suitable service.”
In this situation, the attorney whose condition raised concern, was an ex-partner who could not properly used a phone to join a conference call, appeared to forget discussions with multiple colleagues, and had a client remind him about facts.
At no time did his former colleagues say the attorney gave incompetent representation to his client, according to a report from the ABA Journal.
In its opinion, the bar committee said the attorneys need not report their ex-colleagues situation to the state’s disciplinary administrator, unless there is “knowledge of an action, inaction or conduct of the other lawyer which constitutes misconduct under the Kansas Rules of Professional Conduct.”
Under the KRPC, a lawyer who has “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.”
The Kansas Disciplinary Administrator's Office is a state agency in the judicial branch which reviews complaints of misconduct against lawyers, conducts investigations, holds public hearings and recommends discipline to the Supreme Court in serious matters, according to the office’s website.
On the other hand, KALAP provides identification, peer intervention, counseling and rehabilitation of Kansas attorneys and law students who have “personal difficulties which adversely affect their practice of law.”
The difficulties include physical or mental illness, substance abuse or emotional distress, according to the organization’s website. The organization includes a statewide network of over 130 peer volunteers. Many of these volunteers have faced similar challenges in their own lives, but have since recovered from their own situations.