In Re Tapley, Supreme Court of Georgia, S20Y0754 (April 20, 2020) provides a rare chance to look at mental competency under Georgia Bar Rule 4-104, and an even rarer chance to look at the examination of mental competency outside the context of mental health. Tapley’s rationale calls into question the need for a controversial proposed amendment to the Georgia Rules of Professional Conduct which some have interpreted as meaning merely having a mental health concern can be grounds for disbarment.
Tapley concerns an attorney in his eighties who, at the start of a criminal trial, declared that “he was no longer ‘physically and mentally able to adequately represent his clients.’” Thereafter, Tapley met with the chief judges of two different judicial circuits and agreed “that he would withdraw from ongoing criminal cases and refrain from taking new cases in their judicial circuits.” Those judges entered orders consistent with Tapley’s agreement.
Tapley moved to vacate these orders, and submitted an affidavit in which a psychologist “appeared to conclude that Tapley’s cognitive ability was, for the most part, within the ‘normal’ range for a person his age.” When the orders were not vacated, Tapley sought relief from the Georgia Court of Appeals, who dismissed the appeals for procedural reasons.
Sometime during these events, the State Bar initiated disciplinary proceedings against Tapley. It would appear from the context of the Supreme Court opinion that the Bar contended under Rules 1.1 and 1.3 that Tapley had cognitive issues affecting his ability to practice law, and that Tapley disagreed with that contention. Tapley relied on the deposition of Dr. Meck, the psychologist whose affidavit he submitted along with his motion to vacate. Dr. Meck testified that Tapley had “’age appropriate cognitive decline exacerbated by auditory deficits,’” his “’general cognitive ability . . . is in the average range.’” However, Dr. Meck also testified that his opinions referred to general function and were not specific to the practice of law.
The Bar argued, and the Special Master agreed, that Dr. Meck’s opinion was not competent to refute the evidence that Tapley lacked the competence to practice law. The Special Master placed weight on Dr Meck’s failure to relate his opinion to either the practice of law generally or Tapley’s statements about his own competence specifically. The Special Master granted summary judgment as to the issue of competence and the Special Master’s report and recommendation was submitted to the Georgia Supreme Court.
Tapley filed exceptions to the report and the Georgia Supreme Court agreed. Echoing words familiar to all lawyers who try cases, the Supreme Court explained that “Dr. Meck’s evaluation, while potentially less probative than a specific evaluation of Moore’s competency to practice law would be, was enough to create a genuine issue of material fact. . . .” (This quotation actually states “Dr. Mack,” not “Dr. Meck.” I am checking into which one is right.) Put another way, the attacks on Dr. Meck go to weight, not admissibility. The Supreme Court remanded for an evidentiary hearing.
Without saying so or meaning to, Tapley speaks to a few current mental competency issues in Georgia. The first is a debate concerning a proposed additional comment to Rule 1.1. Rule 1.1 provides in part that “[a] lawyer shall provide competent representation to a client” but contains no reference to the role of mental health in competency. In December, the Bar proposed a new comment to Rule 1.1, making that link explicit: “A lawyer’s mental, emotional, and physical well-being impacts the lawyer’s ability to represent clients and to make responsible choices in the practice of law. Maintaining the mental, emotional, and physical ability necessary for the representation of a client is an important aspect of maintaining competence to practice law.”
After the proposed comment was published, many lawyers involved in attorney mental health issues (this one included) questioned whether the proposed comment would create fear or stigma driven roadblocks to attorneys self-identifying mental health issues. Proponents believe the amendment is necessary to empower the Bar to pursue mental health related competency issues. Tapley indicates that the Georgia Supreme Court already believes the Bar has that power by explaining the scope of the decision as concerning violations of: “a variety of the Georgia Rules of Professional Conduct and lacked the mental competence to continue to practice law.”
Relatedly, Tapley speaks to the relationship between 4-104 and Rule 1.1. There is a relationship between mental health and disbarment. Rule 4-104(a) states “[m]ental illness, cognitive impairment . . .to the extent of impairing competency as a lawyer, shall constitute grounds for removing a lawyer from the practice of law.” However, Rule 4-104 can best be viewed as a procedural rule, only to come into play when the Georgia Rules of Professional Conduct are violated.
Rule 4-104 has an interesting location in the Georgia Bar Rules, and it is arguably outside of the Georgia Rules of Professional Conduct. The Bar’s rules are divided into many “parts.” Part IV is entitled “Georgia Rules of Professional Conduct (also includes Disciplinary Proceedings and Advisory Opinion rules).” Chapter 1 of Part IV is called “Georgia Rules of Professional Conduct and Enforcement Thereof,” Rule 4-102 then contains the “Georgia Rules of Professional Conduct.” Rule 4-102(d) then sets for the Georgia Rules of Professional Conduct” by stating “The Table of Contents, Preamble, Scope, Terminology and Definitions and Georgia Rules of Professional Conduct are as follows.” Rule 4-104 is a wholly separate Rule from Rule 4-102 and the Georgia Rules of Professional Conduct.
Tapley makes clear that without a violation of the Georgia Rules of Professional Conduct (in this case, Rules 1.1 and 1.3), Rule 4-104’s process does not come into play. The court made many separate references to Rules 1.1 and 1.3, most significantly “And we also reject the special master’s recommendation as the violations of Rules 1.1 and 1.3, because the special master’s findings were interrelated with the competency determination.”
Finally, the opinion addresses proof of a lawyer’s mental condition. The court set the burden at the “clear and convincing evidence” level. The State Bar contended that the burden should be similar to the burden placed on an attorney seeking to return to practice, who was attempting to prove mental competence. Mental health can be a mitigating factor in imposing discipline if a violation is present, but merely stating the existence of a mental health issue does not justify mitigation. In In re Kirby, 304 Ga. 628 (2018), Kirby established both the existence of mental issues and their relationship in time to the client harm. However, “[t]he psychologist made specific mental health recommendations but also expressed a concern about whether Kirby would follow through with his stated plans for personal and professional improvement. Kirby’s petition for voluntary discipline provides no indication that he is following the psychologist’s recommendations.”
Likewise, in an opinion cited in Tapley, the court in In re Moore, 305 Ga. 419 (2019) and its predecessor In re Moore 300 Ga. 407 (2016), Moore sought reinstatement on, among other things by, “providing a detailed, written evaluation by a licensed psychologist or psychiatrist certifying that Moore was mentally competent to practice law.” Whatever it was that Moore submitted to comply with that edict, it “did not address Moore’s mental fitness to practice law and that the psychologist did not describe any familiarity with the rigors and demands of the practice of law, did not have a clear understanding of the facts, and appeared to be unaware of the specific request from this Court for a written evaluation certifying that Moore was ‘mentally competent to practice law.’” Moore’s petition for reinstatement was denied, and as of this writing (January 3, 2020) has been no further review of Moore’s case.
There are a number of ways to harmonize these cases. First, and this was the Court’s rationale, Moore and Kirby addressed the issue of specific compliance with a court inquiry/order, but Tapley concerned the substantive issue of proving someone to be of diminished capacity. Second, and perhaps more simply, each case dealt with an effort to “change” the attorney’s capacity: Kirby concerned having a presumably competent attorney proving himself to be impaired for his own sake; Tapley concerned an attorney who the Bar wanted adjudicated to be incompetent to practice; Moore concerned an attorney seeking to be declared competent to practice. In each case, the Court made a rigorous inquiry.
Looking at an issue through a slightly different lens can bring that issue into better focus. Tapley, by addressing issues of competency based on advanced age, may be used to clarify how the Bar and the Supreme Court view competency when mental health is alleged to be the underlying cause.