March 2015 | Earn one hour of MCLE Credit in Competence Issues (substance abuse)
Recognizing impairment in a high-stakes profession
The practice of law is complicated. An attorney must master statutory law, case law, rules of evidence and rules of procedure – to name but a few areas of knowledge. The attorney must understand people, how they differ, how they relate to one another, how emotions impact thinking and how thinking impacts emotions. The attorney must know how to negotiate, reach consensus, overcome barriers to agreement, craft outcomes that are satisfactory and know when a matter can’t be settled and must go to trial. Clients depend on attorneys for accurate and up-to-date advice, guidance and advocacy. The stakes can be high for the client.
Attorneys face immense pressures and stresses. Preparing for deposition and trial are taxing. Dealing with stacks of telephone messages and difficult clients is never easy. Composing correspondence that balances potential rewards and risks is a constant test. As the world becomes inexorably linked electronically by the Internet and smartphones, the demands on attorneys to stay “tuned in,” to be focused on work, respond to issues more rapidly and manage a growing number of complex matters increases.
The practicing attorney must have business savvy and an understanding of how to structure a practice so it is a going concern, or how to work effectively and productively within a governmental or agency structure. Meeting law firm demands to keep business coming in and revenue flowing can pressure even the most experienced attorneys.
On a day-to-day basis, most attorneys use multiple skills without fully recognizing the complexity of their interwoven tasks, doing so with fluidity and apparent ease. But, it is difficult to maintain emotional and cognitive balance in the practice of law. Impairment is a reality that attorneys must be attuned to, aware of and familiar with. No one is immune; every attorney is at risk.
The pressures of law practice, if not managed properly, can easily lead to chronic stress, emotional overreaction, anger issues, depression, abuse of alcohol and drugs, anxiety, interpersonal and relationship problems, sexual dysfunction and fears and phobias. These may negatively affect clarity of thinking, creative problem solving, and interpersonal courtesy and flexibility. Recent advances in medical research show these psychological problems are associated with increased rates of cardiovascular disease, neurological disease, musculoskeletal problems and even cancer.
When an attorney’s ability to smoothly engage in the multiple complex tasks involved in the practice of law is compromised, his or her ability to provide competent, effective and helpful services is diminished. Further, the nature of some forms of impairment may prevent the lawyer from recognizing his or her impairment.
State Bar of California statistics suggest that 75 percent of attorneys who sought help with substance abuse in 2008 were also involved in disciplinary proceedings. The Florida Bar has reported that 15 percent of its members will develop a problem with drugs or alcohol during their career.
Impairment due to drugs and alcohol, while common and pernicious, is only one type of impairment. The legal definition of impairment will vary from jurisdiction to jurisdiction. This article defines impairment as diminished ability to clearly think, utilize and weave together the skills required to solve problems and interact in an interpersonally effective manner. An impaired attorney has diminished capacity to function effectively in his or her job, and/or to interact effectively with other professionals, staff, and clients. Impairment is not a unitary construct; it comes in many forms and can unfold due to multiple paths.
Some forms of impairment, such as impairment caused by a decline in cognitive functioning, can result from aging. Other forms of impairment can be more sudden such as the result of a brain injury or trauma. Impairment can result from psychological distress and mental illness. Yet other forms of impairment result from the accumulated impact of drug and alcohol use/abuse, exposure to environmental toxins or unhealthy lifestyles. Impairment can also result from an illness that does not directly affect the brain and cognitive function, but in which the illness itself or treatment for the illness has cognitive and/or emotional effects.
Consider the following impairments and note their heterogeneous nature:
- Cognitive and/or affective decline due to aging
- Cognitive and/or affective decline due to brain injury or stroke
- Cognitive and/or affective dysfunction resulting from substance use and abuse
- Cognitive and/or affective dysfunction resulting from acute psychological problems or situational life circumstances
- Cognitive and/or affective dysfunction resulting from ongoing/chronic mental illness
- Cognitive and/or affective dysfunction due to exposure to environmental toxins (such as lead poisoning)
- Cognitive and/or affective dysfunction due to physical illness
It is human nature to deny, minimize or project blame when impaired or on the path to impairment. As difficult as it is to acknowledge our own failings and shortcomings, recognizing and addressing impairment in colleagues can be a vexing and impenetrable conundrum, replete with interpersonal, political and career concerns and consequences.
Whatever the case may be, attorneys must be alert to impairment in themselves and their colleagues, and take action to address impairment when observed.
Common signs of impairment are:
- A change in work habits or patterns
- Forgetfulness or lapses in judgment
- Lateness or leaving work early
- Failure to meet deadlines or to be accountable
- Failure to appear for meetings, court dates, depositions
- Diminished quality of work product
- Personal use of trust account funds or trust account overdrafts
- Personal credit problems, tax problems, liens
- Difficulties working with clients, colleagues or staff
- Emotional unevenness, irritability or impulsivity
- Signs of intoxication, smell of alcohol or marijuana
- Increased isolation or secrecy
Impairment is an ethical issue because an impaired attorney is far more likely to breach duties under the California Rules of Professional Conduct. American Bar Association Ethics Committee Formal Opinion 03-429 (June 2003) discusses the duties of law firms with an impaired attorney and suggests how to respond where impairment is suspected or known. The opinion notes that the impaired lawyer has the same obligations under the rules of professional conduct as other lawyers. An attorney who misses filing deadlines or court dates is not excused even if the cause is impairment.
Under the ABA’s Model Rules – rules not binding in California – there is a duty to report a colleague’s impairment under certain conditions (Model Rule 8.4 (b)-(d)). In California, there are no cases, statutes, rules or California bar ethics opinions imposing an obligation to report impairment in a colleague. However, rule 3-110 imposes a duty to supervise the work of subordinate attorneys, non-attorney employees or agents. While an attorney must address impairment of a subordinate attorney, non-attorney or agent, this does not extend to other attorney colleagues or superiors. Regardless of explicit ethical duties, the alert attorney will want to assist impaired colleagues for moral and risk-management reasons.
Because the primary duty of the lawyer is to protect the client, lawyers who fail to take corrective action when they realize they are impaired may violate ethical requirements.
While lawyers who fail to take action when they realize that a colleague is impaired may not violate express ethical duties, it can be argued attorneys have a broader professional or moral duty to address perceived colleague impairment. Loyalty and compassion for the impaired attorney are important, but the attorney’s primary duty is to the client. Despite professional risks to the attorney or the attorney’s firm, all parties concerned and the broader public benefit when impairment is recognized and addressed.
Robert A. Simon is a licensed psychologist and expert in forensic psychologist consulting. He is a member of the State Bar of California’s Standing Committee on Professional Responsibility and Conduct. The opinions expressed here are his own.