Lawyers, Colleagues Can’t Ignore Impairment, Ethics Opinion Says

May 19, 2021, 3:52 PM

Lawyers whose mental impairment affects their ability to practice law, as well as their colleagues who are aware of the problem, can’t ignore it because of ethical duties to firm clients, a California State Bar ethics advisory opinion said.

“These ethical obligations may include, but are not limited to, communicating significant developments related to the lawyer’s conduct to the client and promptly taking reasonable remedial action to prevent or mitigate any adverse consequences resulting from an impaired lawyer’s actions,” the bar said.

The legal profession, which has long emphasized work over quality of life, has only recently taken steps to address burnout and mental health issues.

A recent study conducted by the California and D.C. bars found that overworked women lawyers experience more mental health problems and engage in high-risk drinking at a greater rate than male colleagues. Approximately 21% of lawyers are “problem drinkers,” a 2016 study on attorney substance use and mental health concerns found.

The California opinion proposed a scenario involving a rainmaker at a law firm who appeared confused about a client matter that had been ongoing for two years, couldn’t argue a motion on the client’s behalf; and didn’t communicate a settlement offer to the client. A subordinate attorney at the firm noticed the behavior and approached the impaired attorney, who denied any problems existed and stressed that the firm couldn’t lose the client.

The impaired lawyer’s “proposed course of conduct involves, at a minimum, reckless, grossly negligent or repetitive violations of the duties of competence and diligence,” the opinion said.

Further ethics rules that may be implicated include ones on client communication; conflicts of interest; and terminating representation, it said.

Even though the impaired attorney won’t take any steps to deal with the issue, every lawyer in the firm who knows about it has an ethical obligation to protect the firm’s clients, the opinion said.

What steps to take should be determined on a case-by-base basis, it said.

It may include contacting law firm management or getting outside ethics advice; deciding whether the attorney needs to scale back on work or be removed from work entirely; and whether clients need to be informed, since the paramount duty is to protect the client, the opinion said.

The opinion is State Bar of Calif. Standing Comm. on Prof’l Responsibility & Conduct, Formal Op. 202`1-206.

To contact the reporter on this story: Melissa Heelan in Washington at mstanzione@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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