Addressing Substance Abuse
California Lawyer

Addressing Substance Abuse

Special Credit: Substance Abuse

December 2013

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Practicing law places great demands on attorneys. Those demands may be greater now than ever given increased competition, less client loyalty, and an up-and-down economy. A psychological toll is also taken in working to develop a practice, dealing with opposing counsel, and satisfying the need/desire to be right and prevail for the client. Therefore, it should come as no surprise that substance abuse is a problem for the legal profession as attorneys look for ways - some poorly chosen - to deal with these stresses.

Whenever substance abuse rears its ugly head, a host of statutes, rules, and ethical duties come into play.

Attorney Impairment
The problem of attorney impairment has been sufficiently serious that in 2001 the California Legislature passed a bill establishing the Lawyer Assistance Program (LAP). (See Cal. Bus. & Prof. Code §§ 6230-6238; Cal. St. Bar Rules 3.240-3.252.) Its mission: "to support recovering attorneys in their rehabilitation and competent practice of law, enhance public protection, and maintain integrity of the legal profession."

The LAP is not a treatment program as such; rather, it helps attorneys find proper treatment and works with them to maintain and execute a program of recovery strategies. It was developed to serve as "a confidential resource for every California attorney whose personal or professional life suffers from substance abuse or dependence and/or mental health concerns such as depression or anxiety." By statute, any information obtained by the LAP is protected; the confidentiality is absolute unless waived by the attorney in question. (Cal. Bus. & Prof. Code § 6234.)

"While household studies indicate that roughly 10 percent of the adult population experiences a problem at some point in life as a result of the abuse of alcohol or drugs, several studies suggest that the incidence of this abuse among legal professionals may be as much as 50 percent higher than the general adult population," according to the LAP's 2008 annual report. Studies have also shown a high level of depression among attorneys: "In one large study the rate of clinical depression among attorneys was more than three times the norm for all the occupations studied."

Although the National Institute on Alcohol Abuse estimates that 7 percent of Americans are alcoholics, nearly twice that proportion of attorneys report consuming six or more alcoholic beverages a day. (See Jen Woods, "Attorneys Kick Addictions with Help from The Other Bar," LawCrossing.com, Feb. 26, 2007.)

It is not difficult to understand the pressures that may contribute to substance abuse among attorneys. With tougher competition coming from each new crop of law school graduates and the fact that some career attorneys are postponing retirement, it is difficult for some practitioners to maintain a flourishing practice.

A cursory read of the Discipline report on the State Bar Court [page 51] confirms that ethics violations and substance abuse often go hand in hand. Mental health issues also are commonly seen in conjunction with substance abuse. In its 2008 annual report, the LAP noted that of new LAP participants, 33 percent reported mental health issues, 29 percent reported substance abuse issues, and 38 percent had a "dual diagnosis." In 2012, the intake statistics were 38 percent with mental health issues, 35 percent with substance abuse, and 27 percent dual diagnosis.

As to demographics, 71 percent of LAP participants in 2009 were sole practitioners - lawyers who are responsible for all client-service and business aspects of their practices. That year four out of five LAP participants were male, and most were in their fifties or sixties.

Given what these statistics suggest regarding the extent of substance abuse within the legal profession, it is worth knowing what rules of conduct come into play if you suspect an attorney is being impaired by substance abuse.

Governing Rules
Several California Rules of Professional Conduct are implicated if an attorney is impaired by substance abuse. First and most obvious, all attorneys have a duty to act competently. Thus an attorney "shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence." (See Cal. Rules Prof. Conduct, Rule 3-110(A).) For purposes of this rule, "competence" means applying the diligence; learning and skill; and mental, emotional, and physical ability reasonably necessary for the performance of legal service. (See Rule 3-110(B)(1)-(3).)

An impaired attorney is likely to have a range of compromised abilities relevant to this rule. The impairment may be manifested in being late to work, missing deadlines and appointments, or having skewed judgment - each reflects a lack of the professional diligence and competence required. Repeated instances of such conduct are violations of rule 3-110(A).

As noted above, rule 3-110(B) requires attorneys to have the mental, emotional, and physical ability to competently represent clients. The compromised abilities suffered by an impaired attorney can also be expressed in an inability to deal professionally with opposing counsel, not to mention judges and court staff, as well as how an attorney treats his or her own employees. Abusive and unprofessional conduct stemming from substance abuse can drive staff out the door, compromising the attorney's ability to provide competent and diligent representation to clients.

Additionally, impairment will undermine the attorney's ability to comply with the duty to communicate with clients set forth in Rule 3-500. Keeping clients informed is often one of the first things that falls by the wayside when an impaired attorney begins to struggle to stay on top of his or her practice.

Impairment may even require that the attorney withdraw from representation. Indeed, the bar's governing rules provide in part that an attorney representing a client "shall withdraw from employment, if ... [t]he member's mental or physical condition renders it unreasonably difficult to carry out the employment effectively." If the matter is pending before a tribunal, the withdrawal must be made with the consent of the tribunal. (See Cal. Rules Prof. Conduct, Rule 3-700(B)(3).)

Substance abuse degrades an attorney's mental and physical condition, and the lawyer will be obligated to terminate his or her relationship with clients when performing the requisite duties becomes "unreasonably difficult." Being hung over, showing up late to appointments and hearings, and being unable to focus on work may qualify. Failing to withdraw from the representation would put the attorney in violation of Rule 3-700, as well as the competence requirements of Rule 3-110(A) and (B).

Governing Statutes
The California Business and Professions Code also requires attorneys to perform competently. Section 6067 requires that a person admitted to the bar take an oath to "faithfully discharge the duties of any attorney at law to the best of his knowledge and ability." Therefore, failure to discharge the lawyer's duties is a statutory breach of duty as well as a violation of the Rules of Professional Conduct.

The code also states that "any act involving moral turpitude, dishonesty or corruption ... constitutes a cause for disbarment or suspension." (Cal. Bus. & Prof. Code § 6106.) Substance abuse may well result in acts that would constitute cause for disbarment or suspension under this section. The fact of impairment is not, in and of itself, implicated by this section. However, the impaired judgment resulting from substance abuse could easily lead to such acts, such as using client funds for improper purposes. In short, the impaired attorney is at risk of violating numerous rules of conduct and statutes, not to mention falling short of the standard of care.

Notably, the California Rules of Professional Conduct do not place an affirmative obligation on an attorney to report impairment of a fellow member to the State Bar or any other agency. Dealing with impairment essentially relies on self-reporting in California. Of course, attorneys practicing with an impaired colleague will be highly motivated to address the problem, but that is not the same as the affirmative obligation to report rules violations.

ABA Model Rules
The Model Rules take a very different approach on reporting substance abuse. They set forth explicit reporting obligations for attorneys who suspect that another attorney may be putting clients at risk by practicing impaired.

Like the California rules, Model Rule 1.1 requires competence. Additionally, Model Rules 1.3 and 1.4 expressly require diligence and competent communication with clients. A lawyer who is engaged in substance abuse is at risk of violating all of these.

Model Rule 8.3, which addresses "Reporting Professional Misconduct," provides that "[a] lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority." (ABA Model Rule 8.3(a).)

The rule goes on to clarify that it does not require disclosure of information otherwise protected by ABA Model Rule 1.6 (attorney-client communications) or information gained by a lawyer or judge while participating in an approved lawyers' assistance program.

The ABA's Model Rule 1.16 ("Declining or Terminating Representation") also goes beyond California's rules by stating an obligation to decline accepting a client, or to withdraw from an engagement, when "[t]he lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client." (See ABA Model Rule 1.16(2).) Therefore, if the substance abuse compromises a lawyer's performance, he or she has a duty to withdraw from existing representation and decline new clients and engagements.

Professional organizations have been grappling for some time with the ethical issues raised by a lawyer whose ability is compromised due to substance abuse. Indeed, ten years ago an ABA committee issued a formal opinion on the subject. (See ABA Comm. on Ethics & Prof'l Responsibility, Formal Op. 03-429 (2003).) It addresses the obligations that members of a law firm have under the Model Rules when they suspect a member is impaired. Those obligations include taking steps to prevent impaired lawyers from violating the rules, informing supervisory authorities, and other obligations that may arise when an impaired lawyer leaves a firm.

Under the opinion, a lawyer in a supervisory position in a law firm has a duty to take reasonable steps to ensure that lawyers whom he or she supervises comply with the Model Rules. If the supervisor suspects a lawyer is impaired, the supervisor has a duty to protect the firm's clients.

The opinion also states that if an impaired lawyer has violated the rules, the supervising lawyer or partners of the firm may have further obligations, including reporting the violation to the appropriate professional authorities. "If the mental condition that caused the violation has ended, no report is required." (ABA Formal Op. No. 03-429 at p. 5.) However, if the lawyer's condition continues and the lawyer does not cease practicing, the partners or supervisors must report the violation. Further, the firm may have a duty to discuss the situation with its clients - for example, if the lawyer is removed from a matter and someone else assumes responsibility. However, the firm should attempt to preserve the affected lawyer's privacy to the extent possible.

Another opinion issued by the ABA committee the same year regards the duties a lawyer has when he or she suspects that an attorney who is not a member of the same firm is impaired. This duty is based upon the reporting requirement set forth in rule 8.3(a) above. (See ABA Comm. on Ethics & Prof'l Responsibility, Formal Op. 03-431 (2003).) Under the Model Rules, a lawyer has obligations to the profession that extend beyond tending to his own conduct and that of members of his firm. Rather, the obligations include reporting lawyers whose conduct becomes evident in any number of circumstances. In most cases, lack of fitness will show itself through a pattern of conduct. A lawyer suffering from impairment may, among other things, repeatedly miss deadlines, fail to make filings required to complete a transaction, fail to perform tasks agreed to be performed, or fail to raise issues that competent counsel would be expected to raise.

The ABA opinion cautions that knowledge of heavy drinking or impairment in social settings is not enough. "A lawyer must know that the condition is materially impairing the affected lawyer's representation of clients." Thus, knowing that a lawyer is a heavy drinker is not enough to require reporting; there must be knowledge that the substance abuse is jeopardizing the lawyer's clients. (ABA Formal Op. No. 03-431 at p 3.)

Available Resources
Lawyers suffering from substance abuse (or other mental or emotional issues) can contact the Lawyers Assistance Program at 877/LAP-4-HELP (877/527-4435). They can also reach out to The Other Bar, a confidential counseling program for lawyers dealing with alcoholism and other substance abuse, at www.OtherBar.org or 800/222-0767. An additional resource is LifeRing, a program of peer support groups, at www.LifeRing.org or 800/811-4142. All of these provide ways for lawyers suffering from substance abuse to try to get their lives and careers back on track.

Attorneys in this predicament are at risk of violating numerous statutory duties and rules of professional conduct. Such lawyers are also looking at a vastly increased risk of legal malpractice claims. Beyond that, impairment typically takes an enormous toll on the lawyer's personal relationships, be they with family, friends, or clients. Given the professional dictates to which lawyers are subject, as well as the personal costs associated with impairment, attorneys should be attentive to their own behavior as well as that of their colleagues and take action if they or someone they know needs help.

Steven D. Wasserman and Mark Hancock are partners, and Kelly Van Aken is an associate, at Sedgwick in San Francisco.

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Reader Comments

Comment by Arturo C. Villamor - January 11, 2014
Excellent. Very Informative.
Comment by George R. Tuttle - January 23, 2014
I have read this article.
Comment by Tim O'Connor - January 28, 2014
informative
Comment by Richard Rothschild - January 31, 2014
informative
Comment by Richard Rothschild - January 31, 2014
read it
Comment by vosylius - January 31, 2014
I read the article and completed the exam.

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