Keeping Our Houses in Order: Lawyers' Obligations Concerning Our Own or Our Colleagues' Inability to Competently Represent Clients

Abstract

Securities arbitration lawyers are well aware of the harms that senior investors with cognitive decline face. Lawyers are not immune to incapacitating conditions that likewise harm clients. Though a lawyer's main focus is typically on the client's decision-making ability, there is no question that lawyers have responsibilities concerning their own potential cognitive decline, disability, or incapacity. Just like clients, lawyers are human and face the same risk of age-related incapacity. The realities of law practice might even make it more likely that lawyers will experience incapacity preventing their continued professional work. Whether lawyers are aware of their own incapacity or not, legal ethics rules require attorneys to take action if an incapacity limits their ability to competently represent clients. Lawyers are also responsible for policing the profession: a lawyer aware of another lawyer's incapacity preventing that attorney from competently practicing is obligated to take action. This article addresses the ethical duties concerning lawyer incapacity. Part I provides an overview of the risks and realities of law practice that may lead to an incapacity restricting a lawyer's ability to practice. Part II focuses on the individual lawyer, outlining the ethical duties that the lawyer owes to ensure competent representation and the protection of the client's interests should a lawyer no longer be able to meet that standard. Part III shifts the focus to the profession and all lawyers' ethical responsibilities to protect the public by taking action should a fellow member of the bar be unable to competently represent clients. Finally, Part IV discusses the need for individual lawyers and firms to plan for lawyer incapacity.

Keywords: legal ethics, legal profession, diminished capacity, incapacity, cognitive decline, legal practice

JEL Classification: K19, K49