Minnesota Lawyer Blog

I don’t go to movies for reality and certainly not for advice in how to practice law. Nevertheless, I thought I’d ask a couple of local ethics gurus about some of the professional dilemmas—and there are plenty of them—that arise in the course of the new movie, Michael Clayton.

The movie, as you may know from the omnipresent advertising, involves a products-liability lawsuit that threatens to go south in a big way when the lead litigator, a manic depressive, goes off his meds and begins to reveal the client’s dirty secrets. (For more details, see yesterday's blog post, "Michael Clayton' provides an interesting view of in-house work".)

Minneapolis attorney Chuck Lundberg offered the following observations:

An ABA formal opinion states: If a lawyer's mental impairment is known to partners in a law firm … steps must be taken that are designed to give reasonable assurance that such impairment will not result in breaches of the Model Rules. If the mental impairment of a lawyer has resulted in a violation of the Model Rules, an obligation may exist to report the violation to the appropriate professional authority.

If the firm removes the impaired lawyer in a matter, it may have an obligation to discuss with the client the circumstances surrounding the change of responsibility. If the impaired lawyer resigns or is removed from the firm, the firm may have disclosure obligations to clients who are considering whether to continue to use the firm or shift their relationship to the departed lawyer, but must be careful to limit any statements made to ones for which there is a factual foundation.

The obligation to report a violation of the Model Rules by an impaired lawyer is not eliminated by departure of the impaired lawyer.

Minneapolis attorney Bill Wernz agrees, and adds:

If no one else in the firm can handle the case properly, the firm should advise the client to get a new law firm. If the client wants to settle the case and if the settlement is reasonable, the firm could still advise on that.

As to the firm's obligations vis a vis the "smoking gun," it depends on whether evidence has been held back from discovery responses or false statements have been made. Rule 3.3 (candor toward the tribunal) was made more demanding in 2005 in Minnesota in response to the Enron/Sarbanes-Oxley events. Rule 3.4(d) requires diligent discovery responses.