GPSolo Magazine - October/November 2004

When Colleagues Need Help

I am asked fairly often to speak at law school professional responsibility classes about the Texas Lawyers’ Assistance Program and the help it provides to lawyers and law students. Often, I use the following hypothetical example to start a discussion of relevant ethical issues: You are the managing partner of a major law firm in a large metropolitan area. One day, a junior associate informs you that a senior associate has a serious cocaine and alcohol problem. The information is credible, detailed, and alarming; it also points to the potential for trust fund violations or other misconduct associated with substance use. What do you, the managing partner, need to do?

The silence that greets this simple question is profound but not unexpected in a law school classroom. The silence that greets a situation like the above in the “real” world is more seriously alarming. While the question “what do I need to do?” is simple, the answer can be fairly complex. In short, when substance abuse or a mental health disorder pushes a lawyer to violate the rules and standards of professional conduct, other lawyers and law partners may be legally and ethically required to take action. The details of this answer will take a bit longer to explain.

As a volunteer with the Texas Lawyers’ Assistance Program since 1996, a staff member since 1997, and director since 1999, I have received thousands of calls relating to the behavior of lawyers with substance abuse and mental health disorders, depression, aging, stress, burnout, and similar conditions. Each situation and call is unique, yet the rhythm and rhyme of the questions and the ensuing conversations have become increasingly familiar as the years pass. After we determine the nature of the crisis, delineate the extent of the problem, and find a viable solution to help get that lawyer to the professional or peer assistance needed, the conversation invariably turns from the personal to the professional—to the effect of these behaviors on the individual’s law practice, law firm, partners, clients, and the court, and the responsibilities and actions that flow to those who have knowledge of certain critical events. I know these conversations take place each day in lawyers’ assistance program offices, as well as in large and small law firm offices throughout all 50 states.

In addition to the lawyers’ assistance program outreach and assistance, each state has a system of disciplinary rules and procedures that address the issue of reporting professional misconduct, and many such systems have additional rules and guidelines relating to obligations and ethical requirements when a lawyer’s conduct and professional performance may be impaired by substance use or mental health disorders. In Texas, these matters are addressed most concretely in the Texas Disciplinary Rules of Professional Conduct, Rule 8.03 (Reporting Professional Misconduct) and its Comments, but certainly other rules operate to impose responsibility and action by members of law firms and the lawyer him- or herself. For example, Texas Rule 5.01 (Responsibilities of a Partner or Supervisory Lawyer) and 1.15 (a)(2) (Declining or Terminating Representation) may dictate the disclosure of certain information or action by pertinent individuals under certain situations.

On June 11, 2003, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility also entered into a discussion of certain ethical obligations of a law firm to report the misconduct of a lawyer impaired by mental illness by issuing its Formal Opinion 03-429, “Obligations with Respect to Mentally Impaired Lawyer in the Firm.” The opinion is based on the language of the Model Rules of Professional Conduct as amended by the ABA House of Delegates in February 2002 and is an advisory opinion only to individual jurisdictions, but it is an insightful discussion of some of the issues surrounding this complex problem.

Opinion 03-429 first discusses the obligation of a law partner or supervising lawyer to take steps to prevent misconduct by a lawyer impaired by substance use, mental health disorders, age-related mental conditions, or similar conditions. Rule 5.1(2) requires that law firms and others in certain managerial authority make reasonable efforts to establish internal policies and procedures that provide reasonable assurance that all lawyers fulfill the requirements of the Model Rules. Similarly, those with direct supervisory authority over another lawyer are required through Rule 5.1(b) to make reasonable efforts to ensure that the supervised lawyer conforms to the Model Rules.

When a lawyer knows that a supervised lawyer is impaired by certain mental disorders, close scrutiny is necessary to combat the risk that the impairment may lead to violations of the Model Rules. The opinion cautions that “knowledge” under Rule 1.0(f) denotes actual knowledge, which may be inferred from the circumstances. It further notes that an impaired lawyer’s mental condition may fluctuate over time and that “certain dementias or psychoses may impair a lawyer’s performance on ‘bad days,’ but not on good days . . . [and that] if such episodes of impairment have an appreciable likelihood of recurring, lawyers who manage or supervise the impaired lawyer may have to conclude that the lawyers’ ability to represent clients is materially impaired.”

The opinion states that a firm must make reasonable efforts under the circumstances to protect the interests of its clients. The opinion delineates certain steps that may be reasonable under some circumstances, including, but not limited to, consultation with psychiatrists, psychologists, or other mental health professionals. Also discussed are suggestions for confronting the lawyer with the evidence of impairment and unprofessional conduct, recommendations to require the lawyer to seek assistance, certain accommodations that may support the lawyer’s treatment and recovery, possible supervisory responses, and steps to prevent the lawyer from rendering legal services to clients of the firm.

If a lawyer has violated the Model Rules, another lawyer in the firm may have an obligation under Rule 8.3 to report the violations to the appropriate professional authority. The opinion delineates under what circumstances this duty to report is and is not triggered. In the context of impairment issues, it is important to remember that the ethical obligation under Rule 8.3 is not to report that the lawyer is impaired but rather that he or she has violated an applicable rule of professional conduct. The standard is quite explicit: Only violations of the Model Rules that raise a substantial question as to the violator’s honesty, trustworthiness, or fitness as a lawyer must be reported and then only if the reporting lawyer “knows” that the other lawyer has committed a violation of those particular rules.

In certain circumstances, the reporting of a matter may not be sufficient action. If the matter in which the impaired lawyer violated his or her duty to act competently or with reasonable diligence and promptness is still pending, the firm may not simply remove the impaired lawyer and select a new lawyer to handle the matter. Under Rule 1.4(b) there may be an additional responsibility to honestly discuss with the client the circumstances surrounding the change of responsibility—while being mindful of the privacy rights of the subject lawyer.

The responsibility to the client may not end with a lawyer’s resignation or separation from the firm. The opinion speaks to several issues surrounding communications with clients. Model Rule 1.4 requires a firm to advise existing clients of facts surrounding the withdrawal of counsel to the extent disclosure is “reasonably necessary” for those clients to make an informed decision about selection of counsel. The opinion also gives some guidance as to how that communication should also comply with Model Rule 7.1 (prohibition of false and misleading communication about firm services) and Model Rule 8.4(c) (prohibition of deceit or misrepresentation). There is helpful information regarding whether a firm should inform former clients who have already shifted their relationship to a lawyer believed to be impaired or what, if any, communication needs to occur relating to those clients who are considering continued representation by the subject lawyer.

The ABA Standing Committee on Ethics and Professional Responsibility has admirably delineated the issues and responses surrounding the problem of a lawyer whose impairment may result in the violation of the model rules. The bitter-sweet fact is that the challenges and solutions surrounding a lawyer whose conduct is impaired by substance use or mental illness is now the subject of several American Bar Association Ethics Opinions. While this raises the consciousness of all concerned, decreases the stigmatization of those with mental health disorders or substance abuse, and ultimately helps educate the legal profession as to the nature and consequences of these diseases, it also demonstrates that the problem has become more and more commonplace.

Formal Opinion 03-429 also helps answer the law school hypothetical, “what should you do?” by addressing some of the facts and circumstances that trigger certain ethical obligations to act when a lawyer is known to be suffering from substance use or mental health or age-related disorders. Necessarily, the opinion is silent as to what other, more personal obligations a law firm may have toward a partner, associate, or employee who is challenged by such disorders yet whose conduct never reaches the triggering event that requires an obligation to report. But because I have the luxury and liberty of the bully pulpit here and elsewhere, I often suggest that we have an obligation to confront, assist, and support lawyers struggling with substance abuse or mental health disorders. The Texas Lawyers’ Assistance Program and other lawyers’ assistance programs across the United States have had thousands of these conversations. These conversations can help change lives, save careers, and work to protect clients, the profession, the rule of law, and the public. It’s a tragedy that we don’t have these conversations more often with lawyers who are the object of our concern, and that we don’t have these conversations earlier in the progression of the diseases.

It also is important to note that Opinion 03-429 does not mention the possibility of consulting a state lawyers’ assistance program under any of the circumstances discussed therein. It is the opinion of this author that such consultation may constitute a “reasonable effort” within the meaning of the rules. A lawyers’ assistance program is often staffed by legal and/or mental health professionals who possess years of experience, training, and education in both mental health disorders and substance abuse and who are also cognizant of the context in which lawyers operate and of the continuum of responses appropriate within the legal community. In short, a state lawyers’ assistance program may provide invaluable assistance in helping a law firm design and implement the prevention, identification, and supervisory responses contemplated by these model rules and Formal Opinion 03-429. Equally important, in certain jurisdictions a report to the approved lawyers’ assistance program may satisfy ethical obligations when knowledge of a lawyer’s misconduct triggers the obligation to report. In any event, once a report is made to a lawyers’ assistance program, appropriate outreach and assistance may then be provided to the lawyer in question, with the ultimate goal and hope of recovery, health, and the return to the ethical practice of law.

So, when you next ask yourself, “what do I need to do,” here are some suggestions. Read ABA Formal Opinion 03-429. Also read the subsequently issued ABA Formal Opinion, 03-431, “A Lawyer’s Duty to Report Rule Violations by Another Lawyer Who May Suffer from Disability or Impairment.” Do some additional research and consult experts in the fields relating to ethics, malpractice, and employment law. Pick up the phone and discuss the issues with your lawyers’ assistance program. In following these suggestions and others that you receive along the way, I believe that you will be acting in an ethical and responsible manner—and in the process you just may help save someone’s life and career.

Ann D. Foster is director of the Texas Lawyers’ Assistance Program. She can be reached at afoster@texasbar.com.

 

The text of this article may be reproduced for classroom use in an institution of higher learning and for use by not-for-profit organizations, provided that such use is for informational, non-commercial purposes only and any reproduction of the article or portion thereof acknowledges original publication in this issue of GPSolo, citing volume, issue, and date, and includes the title of the article, the name of the author, and the legend, “© 2004 by the American Bar Association. Reprinted by permission.”

 

 

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