November 01, 2019 Feature

When Clients and Colleagues Battle Opioid Use

John Hardin Young

The opioid crisis is the deadliest epidemic in U.S. history. It doesn’t discriminate.

In May 2018, the Senior Lawyers Division, in collaboration with more than 20 ABA entities and external organizations, held a summit addressing the epidemic. The result was a report, Experienced Lawyers, American Families, and the Opioid Crisis. In January 2019, the ABA House of Delegates adopted Resolution 108, which was based on the report. The report and resolution address three aspects of the problem:

  • The effects of opioid-use disease on the family
  • Expanding access to treatment, education, and advocacy efforts
  • The necessary changes to laws and policies surrounding those directly, and indirectly, affected

In 2019, the ABA Section of Litigation & Solo, Small Firm and General Practice Division and Senior Lawyers Division CLE Conference dealt with the ethical considerations surrounding a lawyer’s clients and colleagues involved with OUD.

Its starting point was the Model Rules of Professional Conduct. Rule 1.14(a), dealing with a client with diminished capacity, requires that the lawyer shall “as far as reasonably possible, maintain a normal client-lawyer relationship with the client.”

Under Rule 1.14(b), it’s only when a lawyer reasonably believes the client may be at risk of “substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest” that the lawyer may take “protective action.”

That raises numerous questions, including:

  • How do lawyers know if a client has crossed that line where protective action is justified?
  • What steps must lawyers take, if any, if they believe the client is at risk?
  • How do lawyers adequately determine the level of risk?

Rule 1.14(c) provides that the lawyer may breach the rules of confidentiality, but on what terms and with whom?

When discipline comes into play

OUD also implicates the disciplinary process when it impacts the provision of legal services. Lawyer assistance programs play an important role. Again, questions arise, including:

  • What are the ethical considerations for lawyers with a colleague who’s struggling with OUD?
  • When should lawyers report a colleague to a lawyer assistance program, and when must lawyers report a colleague to disciplinary authorities?

A broad focus is necessary

Clearly, society needs to focus on multidisciplinary approaches to the crisis. The law may be behind the medical field because many questions remain, including when drugs can be used to treat OUD, what role professional advisors and lawyers have in the treatment of OUD, and the privacy rights that apply to the disclosure of treatment.

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John Hardin Young

John Hardin Young is counsel to the Washington, D.C., law firm of Sandler Reiff Lamb Rosenstein & Birkenstock, P.C., and was the chair of the ABA Senior Lawyers Division for 2017–2018. He was a member of the ABA Board of Governors from 2007–2010 and chair of the ABA Section of Administrative Law & Regulatory Practice from 1999–2000.