November 01, 2019 Feature

Are Your Colleagues Fit to Practice?

Tish Vincent

As lawyers, we have a responsibility to hold colleagues accountable for being fit to practice under the Model Rules of Professional Conduct 8.3(a)(b). This rule implies awareness of our colleagues’ work and of their fitness to practice. Adherence to the rule protects the public, individual clients, employers, and individual attorneys and judges.

Yet most attorneys struggle with what to do when they witness behavior in one of their colleagues that’s worrisome.

People are hesitant to judge their peers’ behavior. They may notice odd behavior and attribute it to stressful personal or professional circumstances. They hope things will improve without needing to suffer the embarrassment of confronting a peer about their concerns.

Attorneys note two barriers to seeking help when struggling with addiction or mental illness, according to a 2016 study. They fear that seeking help will damage their reputation. And they fear their privacy won’t be protected and that others will find out they have a problem.

This same research found that attorneys report much higher levels of substance abuse and emotional problems than the general population. That combination is dangerous to attorneys and those who rely on them.

The Dangers of Opioid Use

Opiates were developed initially to treat acute pain. Pain is acute when it’s time limited and related to an injury or an illness that will resolve. Think of the pain of a broken bone or an appendectomy.

Over time, opiate pain medication began to be prescribed to individuals suffering with chronic pain. Pain is chronic when an individual has a condition that won’t resolve in time or even with medical treatment. Think of the pain of arthritis or the lingering pain from a back injury.

With chronic pain, the need for pain relief won’t go away. Pain medications offer relief, but at a serious price. Opiate pain medications are addictive drugs. Individuals taking them develop a tolerance to a certain dose and need increasing doses of the drug for the same pain relief.

A unique danger exists with opiates. At significantly high doses, opiates interfere with—and eventually stop—respiration. Consequently, individuals may die accidentally because they’ve increase the dosage of their opiates in search of relief from their pain.

In 2017, 70,200 people died of an overdose of “illicit drugs or opioid prescriptions,” according to the National Institute on Drug Abuse.

The side effects of opiate pain medication are gastrointestinal, slowed recovery from surgery, cognitive impairment, respiratory depression, hyperalgesia (increased sensitivity to pain), and hypogonadism (lowered sex hormone levels in both men and women).

The Risk to Attorneys and Clients

For practicing attorneys, one of the most concerning side effects of using or abusing opiate medication is that of cognitive impairment. The opiates cause “reduced spatial memory capacity and impaired performance in working memory assessment,” according to a 2014 study.

Some individuals in recovery for an addiction to heroin or opiates need to be managed on medication-assisted treatment and are prescribed methadone or suboxone. These medications are monitored and kept at therapeutic doses. It’s been suggested that licensed professionals on MAT, physicians or lawyers, could be allowed to practice only if they submit to neuropsychological testing that determines their cognitive capacities and executive functions to be intact.

Ethical Responses to Impaired Colleagues

Most lawyers are keenly aware of how sensitive they are about their own reputation. They intuit that their peers are equally sensitive. Consequently, when a colleague seems to be under the influence of an addicting psychoactive substance, the observer can feel quite stymied and uncertain about what to do. Truthfully, this is a difficult reality for anyone to face, including well-trained and seasoned clinicians.

As human beings, we have an ethical duty to one another. As lawyers, our ethical duty to our peers and those who rely on them is more extreme. So, despite our misgivings, we summon our courage and begin the conversation along these lines:

  • A friend—With a close friend or family member who happens to be an attorney or judge, we follow several steps. We acknowledge that there’s a problem. Then we find a few other close people who also see the problem. Next, we turn to our Lawyer Assistance Program, our EAP, or our private physician and identify treatment or assessment resources. Finally, we speak with our friend or family member, express our concern, ask them to see a professional, and encourage them to follow through.

Later, we ask about them and whether they’ve spoken to treatment providers. We don’t have the power to make the person go for help. However, the fact that we overcame our discomfort and embarrassment to express our concern will stay with the person and may result in them following through.

  • A co-worker—With a co-worker, the stakes are higher. We’re working in an environment where the duty to clients is a factor that must be considered. When our co-worker is an attorney and so are we, there’s a duty to report unethical conduct to the state regulatory body.

The employer’s leadership needs to be informed of the worrisome behavior and the possible abuse of opiates. The employer should have resources identified. The same four steps taken with friends can be followed. If the legal employer refuses to do its duty, the need to report the attorney at risk’s questionable status and conduct falls to the observing attorney.

  • A colleague neglecting responsibilities—What if you encounter a legal professional in your practice who’s obviously neglecting professional responsibilities? When malfeasance or misfeasance is occurring due to an addiction to opiates, attorneys have an ethical responsibility to report the attorney to the state’s regulatory entity.

A disciplinary body will often refer the attorney to the state’s LAP for evaluation and recommendation. Attorneys who refuse to comply may face a suspension of their license or, in extreme cases, disbarment.

Some jurisdictions allow impaired attorneys to keep their discipline private if they enter and comply wiht a monitoring agreement with their LAP.

These guidelines for responding to concerns about someone who’s misusing or abusing opiates are the same if attorneys are licensed and practicing, if they’re cutting back on their work hours, or if they’re retired. The dangers of opiate abuse aren’t merely the dangers to the practice of law. They’re also dangers to the person who’s caught in the midst of a cunning disorder.

The ABA is Taking Action

At the ABA 2019 Midyear Meeting, the House of Delegates adopted Resolution 108:

That the American Bar Association urges all federal, state, local, territorial, and tribal courts, governmental entities, bar associations, public health agencies, lawyer assistance programs, lawyer regulatory entities, institutions of legal education, law firms, and other entities to consider the recommendations and action points in the report Experienced Lawyers, American Families and the Opioid Crisis.

The opiate crisis is real, and it calls on each of us to educate ourselves, to educate others, and to hold institutions accountable for working toward solutions. Each of us can contribute to this effort by understanding how to approach struggling colleagues and how to implement policies that encourage us all to be responsible to one another and the public we serve.

Entity:
Topic:

Tish Vincent

Tish Vincent is the program director of the Lawyers and Judges Assistance Program at the State Bar of Michigan. She’s a licensed therapist and attorney and Certified Advanced Alcohol and Drug Counselor. She’s also a commissioner on the ABA Commission on Lawyer Assistance Programs.