It’s no secret that lawyers struggle at disproportionate rates with mental-health and substance-abuse issues. The National Task Force on Lawyer Well-Being reported in 2017 that in a study of 13,000 practicing lawyers, 28 percent struggled with depression; 19 percent struggled with anxiety; and between 21 and 36 percent qualified as “problem drinkers.” Most at risk for depression and drinking problems are “younger lawyers in the first ten years of practice and those working in private firms[.]”
The Task Force’s alarming report gave rise to what some have called a “lawyer well-being movement” — including an ABA lawyer-wellness pledge campaign targeting law firms, resource tool-kits and broad discussions in the legal press. (See here and here (subs. req.), for instance.)
What are the ethics duties?
But what are the ethics duties of firms and their lawyers when it comes to dealing with an impaired lawyer? It is obvious that impaired lawyers may not be able to manage responsibilities to clients adequately, and may struggle to meet their duties of competence and diligence. The risks are equally obvious: the Task Force Report cites one study suggesting that “40 to 70 percent of disciplinary proceedings and malpractice claims against lawyers involve substance use or depression, and often both.”
The Washington, D.C. Ethics Committee issued an opinion earlier this month explaining the duties that partners, supervisory lawyers, subordinate lawyers and even non-lawyer employees have when they reasonably believe that a lawyer in the firm or government agency has a significant mental impairment that poses a risk to clients. (The same principles would apply to corporate in-house legal departments, which are included in the definition of a “firm” under Model Rule 1.0(c).)
Whether the impairment is related to age, substance abuse, a physical or mental health condition or something else, if it is ongoing or has a likelihood of recurrence, then there may be a duty to take appropriate measures, the Committee said in Opinion 377.
What to do
Here is a digest of some of the guidance that the Committee provided in Opinion 377.
- If you are a law firm manager or supervise other lawyers, you must closely supervise the conduct of a lawyer you reasonably believe to be impaired, because of the risk of harm to clients. (See Model Rule 5.1.)
- If the impaired lawyer’s violation of an ethics rule raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness to practice, all lawyers, whether supervisors or not, have a duty to report it to appropriate professional authorities — unless client confidentiality duties (or other law) prohibits disclosure. (See Model Rule 8.3.) On the other hand, client consent can lift the prohibition. The reporting duty is not eliminated even if the impaired lawyer is removed or leaves the firm.
- The firm might have communication obligations to clients that are considering whether to stay with the firm or transfer their representation to the departing lawyer. (See Model Rule 1.4.) But the firm must also be cautious — other law and the impaired lawyer’s privacy rights can limit the information permissible to disclose.
- Mental impairment does not lessen the duties owed to clients, and a lawyer has a duty to withdraw if a mental or physical condition materially impairs the lawyer’s ability to represent the client. (See Model Rule 1.16(a)(2).)
- The firm’s ultimate ethical obligation is to protect the interests of its clients, and if an impaired lawyer does not or will not take steps to address the problem, then the lawyer’s partners, managers or supervisors must do so.
Humanity and compassion
Maintaining well-being in our stressful profession is a challenge. Our humanity and compassion demand that we not stand by when a colleague is suffering and we should look out for signs that someone needs help. Equally, our ethics obligations to our clients demand that we look to the steps we must take to ensure that their interests are safeguarded.
Every jurisdiction has resources to help lawyers — and law students — who are struggling. Here is a link. If you need help, try to reach out. And if you know someone who needs help, try to give it.