chevron-down Created with Sketch Beta.
February 05, 2021 Feature

The Impaired Lawyer

Ashley Oldham

It’s no secret that the legal profession has its fair share of members dealing with substance use, mental health, and cognitive issues. In fact, research suggests the legal profession may have more than its fair share. In 2016, the American Bar Association Commission on Lawyers Assistance Programs and Hazelden Betty Ford Foundation published a study finding that of the 13,000 practicing lawyers it examined, between 21 and 36 percent qualify as problem drinkers and approximately 28 percent, 19 percent, and 23 percent are struggling with some level of depression, anxiety, and stress, respectively. Patrick R. Krill et al., The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys, 10 J. Addiction Med. 46 (2016). It’s not difficult to identify the cause of the legal profession’s seemingly disproportionate rates of mental health and substance use issues. Increases in the use of drugs and alcohol are correlated with increases of stress and pressure in an individual’s life. Robert Holman Coombs, Drug-Impaired Professionals (Harvard Univ. Press 1997). Between strict deadlines, billable hours, crippling student loan debt, and the adversarial nature of the work, stress and pressure seem to be core tenants of the legal profession.

Substance use and mental health disorder diagnoses are not the only causes of impairment in lawyers, however. Impairment can creep into legal practice as our colleagues age. It’s not uncommon for lawyers to toil away at their desks well into their 60s, 70s, and even 80s. Having practiced law for four or five decades, many struggle to hang up the shingle even when signs of cognitive decline become apparent.

A lawyer with a substance use problem or cognitive impairment poses a number of potential ethical issues. Some publications suggest that 40 to 70 percent of disciplinary proceedings and malpractice claims against lawyers involve substance use or depression, and often both. Douglas B. Marlowe, Alcoholism, Symptoms, Causes & Treatments, in Stress Management for Lawyers 104–30 (Amiram Elwork ed., 2d ed. 1997) (cited in Marjorie A. Silver, Substance Abuse, Stress, Mental Health and The Legal Profession, N.Y. State Law. Assistant Trust (2004)). What are our obligations as partners and members of the bar when we suspect impairment in a fellow colleague? What can we do as employers and colleagues to protect ourselves and others from becoming an impaired lawyer?

When a lawyer begins to show signs of impairment, it is often those closest to him or her who are the first to notice. Whether it’s a pattern of missed deadlines and appointments, a sudden change in appearance or demeanor, or even an odor of alcohol after a long lunch, those we work with every day are likely the first to notice a problem and the first line of defense in protecting our clients and the integrity of the profession. When impairment of an employee or partner is a concern, the firm’s paramount ethical obligation is to protect the interests of its clients. According to the American Bar Association’s Formal Ethics Opinion 03-429 (June 11, 2003), “If a lawyer’s mental impairment is known to partners in a law firm or a lawyer having direct supervisory authority over the impaired lawyer, steps must be taken that are designed to give reasonable assurance that such impairment will not result in breaches of the Model Rules.”

The first of these steps to assure compliance with the Model Rules will likely be to confront the impaired lawyer with the facts of his impairment. Because some of the same factors that create an environment for impairment can prevent the attorney from admitting there’s a problem, it’s often helpful to come to the table prepared with facts—firsthand observations of the lawyer’s behavior that is causing concerns—and resources. Resources may include a referral for an outside assessment—a neutral, third-party evaluation by a clinician—or offering to call the individual’s doctor with observations. Resources should include the contact information for your state’s Lawyer Assistance Program—a program that provides confidential services and support to judges, lawyers, and law students who are facing substance use disorders or mental health challenges.

The second of these steps must be to develop a plan. The ABA’s Formal Ethics Opinion 03-429 mandates that steps be taken to assure that clients are represented appropriately notwithstanding the lawyer’s impairment. Management of the firm has an obligation to supervise the legal services performed by the lawyer and, if necessary, prevent the lawyer from rendering legal services to clients of the firm. Depending on the nature, severity, and permanence of the lawyer’s impairment, it may be possible to accommodate the impairment by changing the individual’s work environment or the scope of his responsibilities. So long as reasonable efforts have been made to institute procedures designed to assure compliance with the Model Rules, neither the partners in the firm nor the lawyer with direct supervisory authority is responsible for the impaired lawyer’s violation of the rules unless they knew of the conduct at a time when its consequences could have been avoided or mitigated yet they failed to take reasonable remedial action. ABA Formal Ethics Op. 03-429 (June 11, 2003).

Given the troubling statistics of impairment in the legal profession, attention should be placed not only on how to address impairment once it’s identified but how to help those who are struggling but not yet exhibiting identifiable signs or, better yet, how to prevent it from occurring altogether. It’s important that we, as members of the bar, recognize that many of our colleagues may be suffering in silence. The same qualities that make us good attorneys—independent, driven, problem-solvers—make us poor patients, often unwilling to reach out for help. Never has this been so evident to the North Carolina legal community than this past year. In the summer of 2019, our bar was devastated to learn of the passing of a beloved chief district court judge. Having served in the judiciary for twenty years, Chief District Court Judge Tom Jarrell’s impact was felt throughout the state as he served as president of the North Carolina Association of District Court Judges and started North Carolina’s first DWI Traffic Court to decrease the backlog of pending DWI cases. We were shocked and saddened to learn of his passing but even more so when his autopsy revealed that his death was the result of a fentanyl and heroin overdose. Judge Jarrell seems to have been a perfect example of a colleague suffering in silence. His sudden overdose seems to have shocked not only his colleagues but his close friends and family.

Whether it’s a lawyer showing signs of impairment or a colleague suffering in silence, both are circumstances that we as a bar should strive to prevent. In preventing impairment, continuing education is paramount. It is the duty of firms and local bar associations to ensure that attorneys have access to education related to stress reduction, work/life management, counseling, and substance use treatment. Knowledge of the options available and the ability to share them with a colleague can be a powerful tool in confronting a colleague exhibiting signs of impairment. Although Lawyers Assistance Programs are traditionally known for helping attorneys through substance use issues, several programs and bar associations have begun to focus on age-related cognitive impairment. In 2012, the North Carolina Bar Association formed the “Transitioning Lawyers Commission” for lawyers with cognitive impairment. The Commission is recognized by the North Carolina State Bar as a certified Lawyer Assistance Program and is aimed at confidentially intervening with lawyers dealing with cognitive impairment and helping them to end their careers on a high note. The Commission provides resources for colleagues and family members wanting to help an aging lawyer phase out of daily practice as well as transition support and succession planning to retiring lawyers. A similar group of the Florida Bar, the Aging Lawyers Working Group, partnered with the University of Florida’s Department of Psychology to develop a formalized assessment and intervention program that includes a self-administered Gerocognitive Exam designed to help spot early signs of impairment.

Although mental and physical health are often viewed as an individual’s responsibility, law firms, corporations, and government entities must recognize that lawyer well-being is an important component of organizational success. Healthy lawyers produce better work, thereby giving organizations a competitive economic advantage. In addition to taking time to educate their employees on triggers, warning signs, and resources, organizations should evaluate their internal cultures to ensure they are providing their employees with a healthy and supportive work environment. Research has shown that organizations that provide mentorship and sponsorship aid well-being by creating a stronger sense of personal connection with others in the legal community, restore enthusiasm for the legal profession, and produce more resilient lawyers—in both mentors and mentees. National Task Force on Lawyer Well-Being, The Path to Lawyer Well-Being: Practical Recommendations for Positive Change (2017). Focus should be placed on fostering collegiality and respectful engagement among colleagues. The adversarial nature of the legal profession can deplete motivation, increase burnout, and inflict emotional and physiological damage. Id. Law firms should adopt and implement professionalism standards and develop strategies to ensure such standards are adhered to, particularly among organizational leadership. Finally, organizations need to highlight a core tenet of the legal profession—helping others. Evidence suggests that work cultures that emphasize competitive, self-serving goals will, in turn, create competitive, selfish behavior from lawyers, while those that emphasize a service-centered mission create more collaborative, connected, and resilient attorneys.

Healthy lawyers are effective advocates and foster growth within the profession. We, as members of the bar, can no longer sit by and watch the troubling statistics of abuse and impairment rise within our profession. We must each commit to shouldering the responsibility and taking a step toward improving lawyer well-being—for both ourselves and the legal profession.

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

Ashley Oldham, associate attorney with Parker Bryan Family Law, is certified by the North Carolina State Bar as a family law specialist in Raleigh, North Carolina.