By Mike McBride
The lawyer I’m working for has a drug and drinking problem. When I first started working for her, she seemed to be a fun person to work for. Now I just see it’s the white powder and booze. What I’m worried about is now I think she is playing around with the office’s trust account to feed her habit. There are only two of us in the office, and I’m only out of school a year. How do I handle this?
Dear Working in Snow Country:
However, the above analysis assumes your boss wants help, which may not be the case. In fact, her reaction when you confront her may be less than pleasant, and you may get fired on the spot. However, if your boss has no desire to recognize her problem or to seek to change, it would be in your best interest to leave your present employment as soon as possible in any event.
Regardless of the nature of the reaction of your boss to the confrontation, there is a difficult problem because of the possibility that your client trust account funds may have been compromised by your boss. The AMERICAN BAR ASSOCIATION MODEL RULES OF PROFESSIONAL CONDUCT provides guidance. Rule 1.15 “ Safekeeping of Property” places a duty on us relative to keeping property segregated and safe, including client trust accounts. You would still have this duty even if you are fired or resign immediately after the confrontation. Further, if you remain at your present employment, Rule 1.1, competence may be relevant if her skills are so far impaired by her addiction that she is incompetent on representation matters, particularly if she is in fact stealing clients’ money from trust accounts. Ultimately, her impairment infringes upon the integrity of the profession.
Under Rule 8.3, “Reporting Professional Misconduct,” you have a duty to report her misconduct relative to the stealing or misappropriation of client trust funds. Rule 8.3 (a) provides “[a] lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate professional authority.” Also, many states have different obligations for lawyers in other places. Oklahoma, for example, has RULES GOVERNING DISCIPLINARY PROCEEDINGS. Rule 10.1 “ Definition” defines “ personally incapable of practicing law” as including (c) “Habitual use of alcoholic beverages or liquids of any alcoholic content, hallucinogens, sedatives, drugs, or other mentally or physically disabling substances of any character whatsoever to any extent which impairs or tends to impair the ability to conduct efficiently and properly the affairs undertaken for a client in the practice of law. Further, Rule 12.1 “ Notice to General Counsel” provides in relevant part “[u]pon . . . the incapacity (as defined in Rule 10.1) . . . of a lawyer, any lawyer, or law firm with which the lawyer was professionally associated, including office arrangements, . . . shall give notice to the General Counsel.
Make sure the trust account misappropriation or stealing is really the case, though. Be prepared to document and prove your report to bar association authorities. You do not want to make a mistake on this issue. Your job may be on the line, but we have an overriding duty as lawyers to protect our clients.
Bottom line is that your employer needs help, but it won’t be in your best interest to hang around if she doesn’t want help. If there are sufficient circumstances and evidence, you should contact authorities. You have the duty under the Model Rules of Professional Conduct to report misconduct (subject to the “Lawyers Helping Lawyers” exemption discussed above) and protect your clients.
Although you are a “baby lawyer” as a newly minted J.D., your experience surpasses most brand-new, young lawyers graduating from law school who have yet not learned life’s lessons or had the same responsibilities that you have had. Emphasis your experience and wisdom after you have targeted your next career move. Refocus your efforts to live your dreams.
|Got a question for Mike?|
E-mail D. Michael McBride III at D.Michael.McBride.III@abanet.org
|D. Michael McBride III is a Council member of the ABA General Practice, Solo and Small Firm Division. He also Chairs the Outreach Committee. McBride practices federal Indian law and litigation in Tulsa, Oklahoma, where he is a Director and Shareholder of Sneed Lang, P.C. He also serves the Kaw Nation as an Associate Justice of their Supreme Court.|