July 27, 1983

Opinion No. 83/8
Judge's duty to report attorney's incompetence

Dear

This is in response to your letter of June 29, 1983. You want to know whether a judge has an ethical duty to report the fact that he believes an attorney appearing before him suffers from an emotional or mental illness which renders him incompetent to render legal services, or constitutes a danger to himself or others.

Of the seven members of the Committee on Standards of Conduct Governing Judges who have, to date, responded to this inquiry, all were unanimous that a judges does have an ethical duty to report.

Canon 3 provides that a judge's judicial duties include all the duties of his office prescribed by law. It goes without saying that a judge has a duty to assure that persons appearing before him are adequately represented. This is particularly so in criminal cases. Canon 6 of the Code of Professional Responsibility requires a lawyer to represent clients competently. This is the very stuff of our calling. Canon 3B(3) of the Code of Judicial Conduct requires a judge to "take or initiate appropriate disciplinary measures against a judge or lawyer for unprofessional conduct of which the judge may become aware."

We have an absolute duty to report any instance where a lawyer, by reason of disease, physical or mental infirmity, alcoholism/drug addiction, intoxication, is unable to adequately represent his client. Not only does the Canon require this action, by Disciplinary Rule 11.14 provides two vehicles by which this might be accomplished. Rule 11.14(9) also speaks of the right and responsibility of any judge to call to the attention of the Florida Bar the conduct of any member thereof which, in the opinion of the judge, warrants investigation by the Florida Bar to determine if there has been a violation of the Code of Professional Responsibility, or if an unprofessional act has occurred. As one member pointed out:

"...it is not incompetent practice, ethical dereliction or professional misconduct that need trigger the referral, but merely the existence of 'physical or mental illness, incapacity or infirmness.'" See Article X1, Integration Rule of the Florida Bar, Rule 11.01(4). In dealing with impairment, we are in effect our brothers' keepers and if we sense any impairment of whatever etiology which causes incapability, we must react. In doing so, we may well prevent malpractice and protect the profession, but more importantly, it may also save a life....While there is as yet no impaired attorney rule or committee (within the Florida Bar), per se, there does seem to be an increased sensitivity to an awareness of the problem of misconduct caused by mental or physical disability, as distinguished from that caused by moral responsibility. See Muller, Impaired Attorney Proceedings -- a New Approach to an Old Problem, The Florida Bar Journal, January 1983, page 33.

A judge's failure to report incompetent counsel is a violation of the Canons of Ethics. It matters not that the incompetency is a result of disease. An attorney finding himself in that unfortunate circumstance should remove himself from an area in which he has been rendered incompetent. If he does not do so voluntarily, he should be required to do so by the Bar.

You also inquire whether a judge enjoys immunity in this respect. While the purpose of the Committee on Standards of Conduct Governing Judges is limited to advising judges of the ethical nature of proposed conduct, I, for one, would find it incongruous if a judge were not immune for acts commanded by the Disciplinary Rule and the Canons of Ethics.


Yours truly,

James T. Carlisle
Chairman, Committee on Standards
of Conduct Governing Judges

Participating members: Judges Carlisle, Booth, Hewitt, Green Grube, Tedder, and attorney-at-law Samuel J. Powers, Jr.