March 2015 | Earn one hour of MCLE Credit in Competence Issues (substance abuse)
By Robert A. Simon
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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
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:
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
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.
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