July 30, 2019 Health

Ethical Considerations in Dealing with Clients and Colleagues Battling Opioid Use

By John Hardin (Jack) Young

The Senior Lawyer Division Continues to Lead the ABA Response to the Opioid Crisis by Examining the Ethical Considerations in Dealing with Clients and Colleagues Battling Opioid Use.

On May 2, 2019, the Senior Lawyers Division (SLD) presented an in-depth program on the ethical considerations surrounding a lawyer’s clients and colleagues involved with Opioid Use Disorder (OUD), as part of the Section of Litigation & Solo, Small Firm and General Practice Division CLE Conference in New York City. Participants were Professor Myles Lynk, Professor, Arizona State University; Dr. Kelly Dineen, Professor, Creighton University (and incoming Co-chair of the ABA SLD/ABA Health Law Joint Opioids Task Force); and Tish Vincent, Staff Director, State Bar of Michigan Lawyers & Judges Assistance Program (LJAP).  The moderator of the panel was John Hardin “Jack” Young, former SLD chair.

 

The panel continues the SLD education outreach following the publication of its report, Experienced Lawyers, American Families, and the Opioid Crisis (PDF) in 2018, and the passage of the Division’s resolution by the House of Delegates in January 2019 (House Resolution 108). The panel also continues the Division focus on expanding access to treatment, education and advocacy; strengthening support for individuals and families struggling with OUD; and enacting legal and policy reforms that increase access to treatment and recovery.

The starting point for the panel was the requirements of the Model Rules of Professional Conduct. Rule 1.14(a), dealing with a client with diminished capacity. Prof. Lynk explained that the Rule requires that a lawyer shall, “as far as reasonably possible, maintain a normal client-lawyer relationship with the client.”  It is only when a lawyer reasonably believes that 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 a lawyer may take “protective action.” Rule 1.14(b).

Ms. Vincent detailed how OUD implicates the disciplinary process when it impacts the provision of legal services. Lawyer assistance programs play an important role in dealing with lawyers’ addiction before and after the lawyer has evidenced coping issues due to OUD.

Dr. Dineen emphasized the need to focus on multidisciplinary approaches to the crisis. Comprehensive treatment, including medically assisted treatment, is required in many cases. The law may be behind in the medical field. Dr. Dineen examined four broad categories of OUD:

  1. Impaired control;
  2. Social problems;
  3. Risky use; and,
  4. Drug use effects represented in eleven clinical diagnostic criteria of disorder.

Dr. Dineen examined the gold standard in OUD treatment as medication-assisted treatment (e.g., methadone, buprenorphine and naltrexone).

The panelists papers will be set forth in an upcoming issue of Experience Magazine.

Author 

John Hardin (Jack) Young is a trial lawyer who has focused in election law and electoral recounts. He was on the team of lawyers for the Democratic National Committee during the 2000 Florida election recount and the Bush v. Gore case, and is portrayed in the HBO film "Recount." He is the Immediate Past Chair of the ABA Senior Lawyers Division.