George is a 68-year-old partner and shareholder at a law firm, where he has spent 15 years as the lead litigator for insurance defense. Lately he’s had a hard time remembering hearings and court dates. Kate, his secretary of eight years, has noticed errors in his billable hours, but she protects her boss and corrects his errors, thinking it’s just stress-related. She has to repeat herself over and over to George, who seems very confused. George would like to retire, but he can’t afford to, because his wife, who has lung cancer, recently retired.
George appeared before a judge, who noticed that he was not attuned to the best interests of his client and recited facts that were not of the case before them. The judge was concerned, and called The Florida Bar.
Using this hypothetical example, Linda Calvert Hanson, director of The Florida Bar’s Center for Professionalism, explained how the grievance system works when it comes to complaints about cognitively impaired lawyers.
When a complaint is received by the Bar’s Attorney Consumer Assistance Program, the standard is as follows:
“The impairment does not lessen the attorney’s obligation under Rule 4-1.1 to provide competent representation to a client. Further, The Florida Bar is obligated to protect the interest of that client. Additionally, under Rule 4-1.16, a lawyer must decline or terminate representation if the lawyer’s physical and mental condition materially impairs the lawyer’s ability to represent the client.
“If it appears that George will cause harm to his clients by continuing to practice, the goal for The Florida Bar would be to work with George to structure a diversion to help him gracefully exit the practice of law. There are two primary ways that we’re doing this at this time:
“The first option is to use the voluntary or involuntary inactive status under Rule 3-7.13, Incapacity Not Related to Misconduct. When an attorney is incapable of practicing law because of a physical or mental illness, incapacity, or other infirmity, the attorney may be classified as an inactive member and shall refrain from practice even though there is no misconduct.
“Then if the situation changed, they could get reinstated, but they would have to follow the same reinstatement rules would one who has been suspended for misconduct.
“The involuntary procedure for inactive status is used when circumstances are such that someone has actually been adjudicated as incapacitated or has been hospitalized under the Florida Mental Health Act. That is a petition that is filed with the Florida Supreme Court, and the reinstatement upon a court restoration of their capacity . . . goes through that same process as one suspended for an act of misconduct.
“It’s also noteworthy to understand that, under Rule 3-7.13, Incapacity Not Related to Misconduct, once somebody is put on that inactive list for incapacity, that is public information, once that petition is filed with the Supreme Court. So if you were to look under “Find an Attorney” on The Florida Bar website, you would see a pink N, which means they are not eligible to practice law.
“And when you drill down and look at the individual’s profile, it’s going to show across the top ‘incapacitated.’ There’s been some discussion that that seems fairly judgmental, harsh. That’s the way it would be characterized under ‘incapacity, not misconduct.’
“In a continuing effort to permit lawyers to retire with dignity, another option that is available to The Florida Bar and that attorney is permanent retirement. Under Rule 1-3.5, it states: ‘Any member of The Florida Bar may retire from the Bar upon petition and approval of the executive director.’
“And further, this was just amended last month [August] to say that ‘a member who seeks and is approved to permanently retire shall not be eligible for reinstatement or readmission.’
“And the reason for this is there were circumstances where someone said, ‘Well, I’m going retire,’ thinking they were going to get out from behind a disciplinary action. And then after some time passed, they said, ‘Well, I think I want to get back into the practice.’
“So this change that just became effective in August now makes the permanent retirement: You’re done. Which also means you can’t collect revenue if you have any outstanding cases.
“We do have some recent cases in which this permanent retirement has been a great option. There was a grievance filed, and according to the report of the referee, the case was resolved by the parties; stipulations were filed; and there was a petition for a permanent retirement filed as well. The referee noted that this solo practitioner, who had been in practice for 40 years, had been a mediator for 17 years, and he’d served in the armed forces, and respondent’s medical health has caused it to be more difficult for the respondent to physically keep up with the demands of a law practice, and respondent acknowledged that it’s in the public’s best interest, as well as his own, that he no longer continues to maintain a practice.
“Based upon those facts, the recommendation was approved for the voluntary dismissal of the underlying grievance action, and the permanent retirement was granted.
“This resolution offered a way to protect the public, while allowing this 40-year practicing attorney to retire with dignity. When you open up The Florida Bar website, yes it does show the pink N, ‘ineligible to practice law,’ but when you open up his full page, it shows ‘retired.’ There is no indication of any disciplinary action.
“In George’s situation, once the disciplinary case is filed, he is obligated to notify his firm in writing within 15 days, under Rule 3-7.1, Notice to the Law Firm, under the confidentiality provision.”
(Editor’s Note: Linda Calvert Hanson’s remarks were part of a panel discussion, titled “Professionalism Issues for Senior Lawyers,” at the 38th Annual Public Employment Labor Relations Forum held at the Bar’s Midyear Meeting in September.)