No Obligation to Report Lawyer’s Memory Lapses Without Ethics Violation, Says Kansas Bar

According to the Kansas Bar Association Ethics Committee, there is no professional obligation to report another lawyer’s memory lapses absent knowledge of an actual ethics violation; the Committee recommends that these types of concerns be referred to the Kansas Lawyers Assistance Program (KALAP). The Committee recently opined on the issue in response to an inquiry from a law firm. A partner within the firm had been showing signs of “possible cognitive degeneration” in the form of memory lapses. When the lawyer left the firm but continued to practice, the firm then questioned whether it had a duty to report the lawyer to the Kansas Disciplinary Administrator.

After analyzing the facts under Rule 8.3 (Duty to Report) and Rule 1.1 (Competence), the Committee concluded that:

(a) A lawyer has no duty to report another lawyer for perceived memory lapses which have not resulted in acts or omissions which, in the lawyer’s opinion, represent violations of the KRPC; and

(b) Consideration should be given to a referral of the subject lawyer to KALAP for such evaluation and assistance as may be indicated.

See the KBA Legal Ethics Opinion No. 14-01 here.

Bloomberg BNA reported on the recent development in the context of other ethics opinions (ABA and state) that discuss a duty to report misconduct resulting from suspected impairment – you can access the article here.

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