By Alara T. Chilton
Law Office of Alara T. Chilton
Many of life’s circumstances can impede a lawyer’s mental ability to practice law effectively. Consider the realities of living in a pandemic—long periods of isolation, working from home or in an office with pandemic protocols, as well as the absence of in-person contact—these circumstances can make it challenging for a lawyer to function effectively in the legal profession.
Even prior to the pandemic, the legal profession has been affected by substance abuse and mental health concerns. A 2016 national study by the Hazelden Betty Ford Foundation and the American Bar Association which analyzed data from 12,825 licensed lawyers employed in the legal profession revealed some alarming findings[i]: 20.6% of participants consume alcohol at levels considered “hazardous, harmful, and potentially alcohol-dependent drinking,” and “the highest rates of problematic drinking were present among attorneys under the age of 30 (32.3%), followed by attorneys aged 31 to 40 (26.1%), with declining rates reported thereafter.”
The study also examined the mental health of lawyers and found 28% of participants experienced depression, 19% experienced anxiety, and 23% experienced symptoms of stress. Sadly, “11.5% of the participants reported suicidal thoughts at some point during their career.”
Substance abuse, depression, anxiety and other conditions can impede a lawyer’s mental ability to practice law effectively and become mentally impaired. This article defines mental impairment as a condition experienced to a degree that impedes a lawyer’s ability to effectively provide legal services as required under the California Rules of Professional Conduct and the State Bar Act. Other causes of mental impairment are cognitive decline, post-traumatic stress disorder, bipolar disorder, and other conditions.
Below are some ethical and practical considerations that can help an impaired lawyer protect her clients, as well as her professional reputation and well-being.
An Impaired Lawyer Still Owes Ethical Obligations to her Clients
Impairment does not absolve a lawyer’s ethical obligations under the California Rules of Professional Conduct or the State Bar Act. (Cal. State Bar Proposed Form. Opn. Interim No. 14-0001 at p. 4, internal citations omitted.) Indeed, impaired lawyers have the same ethical obligations as non-impaired lawyers. (See ABA Form. Opn. No. 03-429 at p. 2 [observing “[mentally] impaired lawyers have the same obligations under the [ABA] Model Rules as other lawyers”].)
While an impaired lawyer may receive “mitigation credit” when disciplined in a State Bar action, a preponderance of evidence must establish a causal connection between a lawyer’s “emotional difficulties” or “psychological distress” and the misconduct. (See In Matter of Elkins (Review Dept. 2009) 5 Cal. State Bar Ct. Rptr. 160,168 [no mitigation credit where lawyer failed to show a causal nexus between his emotional difficulties and his misconduct].) (See also In Matter of Kennon (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 267, 277 [no mitigation given where lawyer’s illness followed by death of mother lacked evidence of causal connection between “psychological distress and misconduct”].)
Impairment implicates various California Rules of Professional Conduct and the State Bar Act. This article will only address a few of these ethical requirements as listed below.
Rule 1.1 Competence
Rule 1.1(a) provides “[a] lawyer shall not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence. It follows that even if an impaired lawyer’s actions or failures are not intentional, if they are repeated, reckless, or grossly negligent, they can violate this rule. This distinction is important given that an impaired lawyer may not intend to miss important deadlines, client meetings, court dates, or commit other acts or failures that can harm a client’s case.
Additionally, this rule acknowledges “[c]ompetence specifically includes both mental and emotion components.” (Cal. State Bar Proposed Form. Opn. Interim No. 14-000 at p. 4, internal citations omitted.) Indeed, the rule defines competence as “to apply the (i) learning and skill, and (ii) mental, emotional, and physical ability reasonably necessary for the performance of such service.” (Cal. Prof. Rule of Conduct, Rule 1.1(b), emphasis added.) “Thus, if [an] [a]ttorney’s mental or emotional state prevents her from performing an objective evaluation of her client’s legal position, providing unbiased advice to her client, or performing her legal representation according to her client’s directions, then [an] [a]ttorney would violate the duty of competence.” (Id.)
Rule 1.3 Diligence
Rule 1.3(a) bars a lawyer from “intentionally, repeatedly, recklessly or with gross negligence fail[ing] to act with reasonable diligence in representing a client.” Similar to the duty of competence, it makes no difference if the lawyer’s failure to act with reasonable diligence is not intentional. As long as the failure is repeated, reckless or grossly negligent, it can violate this rule. A lawyer acts with “reasonable diligence” when acting “with commitment and dedication to the interests of the client and does not neglect or disregard, or unduly delay a legal matter entrusted to the lawyer.” (Cal. Prof. Rule of Conduct, Rule 1.3(b).)
Rule 1.4 Communication with Clients
Rule 1.4 imposes various duties regarding communication with clients, including a duty to communicate regarding a client’s objectives. (Cal. Prof. Rule of Conduct, Rule 1.4(a)(2).) The rule also requires a lawyer to “keep the client reasonably informed about significant developments relating to the representation . . . .[ii]” It also requires a lawyer to explain a matter“to the extent reasonably necessary to permit the client to make informed decisions” about the representation. (Cal. Prof. Rule of Conduct, Rule 1.4(b).) The rule makes clear a lawyer cannot ignore communicating with a client.
A Lawyer Owes a Duty to Protect Client Interests
Whether or not impaired, a lawyer has a “professional responsibility to fulfill his duties to his clients or to make appropriate arrangements to protect his clients’ interests.” (Cal. State Bar Proposed Form. Opn. Interim No. 14-000 at fn. 9, internal citations omitted.) Accordingly, the two rules discussed below offer some guidance for how to protect a client’s interests.[iii]
Rule 1.1 Enables an Impaired Lawyer to Protect a Client’s Interests
Pursuant to Rule 1.1(c), a lawyer can become competent by “(i) associating with or, where appropriate, professionally consulting another lawyer whom the lawyer reasonably believes to be competent, (ii) acquiring sufficient learning and skill before performance is required, or (iii) referring the matter to another lawyer whom the lawyer reasonably believes to be competent.”
Options (i) and (ii) enable an impaired lawyer to protect clients at the time “when the legal services are undertaken[iv].” (Id.) However, a lawyer who associates with another attorney in a matter or consults with another lawyer must provide “competent representation [which] still requires knowing enough about the subject matter to be able to judge the quality of the [associated or consulted] attorney’s work.” (See Cole v. Patricia A. Meyer & Associates, APC (2102) 206 Cal.App.4th 1095, 1117 [interpreting former Rule of Professional Conduct, 3–110(C), internal citations omitted].) Thus, the best option for an impaired lawyer to protect a client’s interests may be to refer the matter to another lawyer whom the impaired lawyer reasonably believes is competent.
Rule 1.16 Declining or Termination Representation
Rule 1.16 applies to both the acceptance and termination of a client’s representation and specifically addresses attorney impairment. Rule 1.16(a)(3) requires a lawyer to withdraw from representation or “where representation has [already] commenced” if a “lawyer’s mental or physical condition renders it unreasonably difficult to carry out the representation effectively.”
If the impairment is not yet to the point of making it “unreasonably difficult” to carry out effective representation, then Rule 1.16(b)(8) provides a lawyer may withdraw if a “lawyer’s mental or physical condition renders it solely “difficult” to carry out effective representation.
Consistent with the duty to protect a client’s interests, a lawyer cannot terminate representation untilshe “has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, such as giving the client sufficient notice to permit the client to retain other counsel . . . .” The rule further provides that “[i]f permission for termination of a representation is required by the rules of a tribunal, a lawyer shall not terminate a representation before that tribunal without its permission.”(Cal. Prof. Rule of Conduct, Rule 1.16(c).) Of course, a lawyer cannot breach her duty of confidentiality when seeking permission to withdraw. (Cal. State Bar Form. Opn. 2015-192, citing former Rule of Professional Conduct, Rule 3-100; Cal. Bus & Prof. Code § 6068(e).)
Moreover, upon termination of representation, a lawyer has a duty to release to the client, at their request “all client materials and property,” as well as “refund any part of a fee or expense paid in advance that the lawyer has not earned or incurred[v].” (Cal. Prof. Rule of Conduct, Rule 1.16(e)(1) and (e)(2).)
Assistance is Available Through the Lawyer Assistance Program
Resources are available to a lawyer who finds herself struggling with a mental impairment. The California State Bar has a Lawyer Assistance program (“LAP”) that is focused on helping attorneys cope with stress, depression, substance abuse and other career issues.
Participation in the LAP is completely confidential unless a participant consents to disclose her participation. In addition to providing a “free professional mental health assessment” to ascertain what services a lawyer needs, LAP also offers weekly group meetings with other lawyers.
The above are just a few of the ethical and practical considerations implicated by attorney impairment. Ultimately, impairment does not change a lawyer’s ethical duties, but adherence to the Rules of Professional Conduct and the State Bar Act, coupled with a commitment to obtaining outside support when needed, will go a long way toward protecting an impaired lawyer’s clients, as well as the lawyer’s professional reputation and well-being.
[i] Patrick R. Krill, Ryan Johnson, and Linda Albert, “The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys,” Journal of Addiction Medicine 10, no. 1 (2016): 46–52.
[ii] California Business and Professions Code section 6068(m) also imposes a duty on lawyers to “respond promptly to reasonable status inquiries of clients and to keep clients reasonably informed of significant developments . . . .” (Bus. & Prof. Code § 6068(m).)
[iii] This article does not discuss the duties of managerial and supervisory lawyers who reasonably believe a supervised lawyer is mentally impaired. That scenario is addressed by California Rule of Professional Conduct, Rule 5.1. A lawyer who “possesses managerial authority in a law firm” or who has “direct supervisory authority over another lawyer,” irrespective of whether the supervised lawyer performs work for the same firm, should pay close attention to this rule. (Cal. Prof. Rule of Conduct, Rule 5.1.)
[iv] California Rules of Professional conduct do not define “undertaken.” Merriam-Webster defines “undertake” as “to take upon oneself : set about : attempt,” “to put oneself under obligation to perform, also : to accept as a charge or responsibility,” and “guarantee, promise.” Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/undertake.
[v] A refund is not required under this Rule where the Lawyer has “a true retainer fee paid solely for the purpose of ensuring the availability of the lawyer for the matter.” (Cal. Prof. Rule of Conduct, Rule 1.16 (e)(2).)