Stress and Substance Abuse - Frequently Asked Questions

Why is it important that law firms stay aware of stress and substance abuse?

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According to a study on substance abuse:

Sample General Population Lawyers
Females with alcohol problems 8% 71%
Males with alcohol problems 20% 67%
Females with depression 14% 16%
Males with depression 9% 21%

 


1 Beck, Sales & Benjamin, Lawyer Distress: Alcohol-Related Problems and Other Psychological Concerns among a Sample of Practicing Lawyers, 10 J.L. & HEALTH 1, 1-60 (1995), available here.

What Model Rules should be considered when contemplating the issues presented by stress and substance abuse?

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Model Rule 1.1: Duty of Competency

  • Lawyers have a duty to provide competent representation to a client, which demands the “legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”1 In addition, the duty of competency specifically requires “adequate preparation,” as well as the “use of methods and procedures…of competent practitioners.”2 Accordingly, a lawyer must adhere to the standard expected of competent practitioners. Obviously, stress and substance abuse often interferes with a lawyer’s ability to provide competent representation.

Model Rule 1.3: Duty of Diligence

  • Lawyers have an ethical duty to, “act with reasonable diligence and promptness in representing a client.”3 Further, a lawyer is required to pursue a case “with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.”4 A prudent lawyer should recognize that allowing stress or substance abuse to adversely affect a client does not constitute diligent representation.5 Impaired lawyers often do not act promptly, and can be slow in responding to legal matters as the result of the additional time needed to recover from sporadic substance abuse.

Model Rule 2.1: Lawyers as Advisors

  • When representing clients, lawyers often act in the role of advisor. On such occasions, lawyers have a duty to “exercise independent judgment and render candid advice.”6 Furthermore, this advice can require the analysis of “moral, economic, social and political factors that may be relevant to the client’s situation.”7 Stress and substance abuse can impair a lawyer’s professional judgment and their ability to advise clients on pertinent legal matters affecting representation.

Model Rule 5.1: Duty of Law Firms to Impaired Lawyers

  • Partners at a law firm, or those with similar managerial authority, have a duty to ensure that all lawyers in the firm comply with the Rules of Professional Conduct.8 Lawyers in direct supervisory roles also have a duty to ensure that those under them act ethically.9 When stress and substance abuse impacts the competent or diligent representation of a client, managerial and supervisory lawyers at a firm are required to intervene in the matter to avoid or mitigate consequences. Failure to do so could result in other lawyers becoming liable for additional ethical violations.10
  • Law firms avoid reporting impaired lawyers for a variety of reasons: they care about the lawyer, they have known the lawyer for a long time, and do not want to shame the lawyer. However, as 5.1 discusses, managerial and supervisory lawyers can be subject to discipline for not reporting. Law firms should consider requiring the lawyer to take time off to seek appropriate medical care and diagnosis. While the lawyer is out of the office, the firm should review the at-risk lawyer’s files, and take any actions needed to correct errors, and avoid malpractice concerns.

Model Rule 8.3: Duty to Report

  • In certain cases, stress and substance abuse may present a “substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer.”11 If a lawyer has actual knowledge that another lawyer engaged in this type of misconduct, they generally have a duty to report it to the “appropriate professional authority.”12 However, public policy concerns warrant protection for information that is revealed in an approved lawyer’s assistance program, and this information is not subject to the reporting requirement.13 As a result, lawyers are encouraged to seek help with stress and substance abuse from lawyer’s assistance programs with the knowledge that the information provided for treatment in such programs is confidential.14 Otherwise, many lawyers would avoid reporting given that it could mean that the impaired lawyer would be subject to discipline. Remember too that the earlier an impaired lawyer gets help, the less likely the lawyer’s conduct will have “[raised] a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer,” necessitating discipline.15 So, report early.

Model Rule 8.4: Duty to Avoid Professional Misconduct

  • It is professional misconduct for a lawyer to violate ethical rules, and lawyers are subject to disciplinary action for doing so.16 Stress and substance abuse may cause a lawyer to violate a number of ethical rules, as discussed throughout this section. Furthermore, stress and substance abuse may induce a lawyer to commit other disciplinable actions such as criminal acts that reflect adversely on fitness to practice law,17 “engage in conduct involving dishonesty, fraud, deceit or misrepresentation,”18 or “engage in conduct that is prejudicial to the administration of justice.”19

Check local rules for variations and their interpretations.


1 See MODEL RULES OF PROF’L CONDUCT R. 1.1 (1983) (amended 2013), available here.

2 See MODEL RULES OF PROF’L CONDUCT R. 1.1 cmt. 5 (1983) (amended 2013), available here.

3 See MODEL RULES OF PROF’L CONDUCT R. 1.3 (1983) (amended 2013), available here.

4 See MODEL RULES OF PROF’L CONDUCT R. 1.3 cmt. 1 (1983) (amended 2013), available here.

5 See MODEL RULES OF PROF’L CONDUCT R. 1.3 cmt. 3 (1983) (amended 2013), available here.

6 See MODEL RULES OF PROF’L CONDUCT R. 2.1 (1983) (amended 2013), available here.

7 See MODEL RULES OF PROF’L CONDUCT R. 2.1 (1983) (amended 2013), available here.

8 See MODEL RULES OF PROF’L CONDUCT R. 5.1(a) (1983) (amended 2013), available here.

9 See MODEL RULES OF PROF’L CONDUCT R. 5.1(b) (1983) (amended 2013), available here.

10 See MODEL RULES OF PROF’L CONDUCT R. 5.1 (c)(2) (1983) (amended 2013), available here.

11 SeeMODEL RULES OF PROF’L CONDUCT R. 8.3(a) (1983) (amended 2013), available here.

12 See MODEL RULES OF PROF’L CONDUCT R. 8.3(a) (1983) (amended 2013), available here.

13 See MODEL RULES OF PROF’L CONDUCT R. 8.3(c) (1983) (amended 2013), available here.

14 See MODEL RULES OF PROF’L CONDUCT R. 8.3 cmt. 5 (1983) (amended 2013), available here.

15 See MODEL RULES OF PROF’L CONDUCT R. 8.3(a) (1983) (amended 2013) (emphasis added), available here.

16 SeeMODEL RULES OF PROF’L CONDUCT R. 8.4(a) (1983) (amended 2013), available here.

17 See MODEL RULES OF PROF’L CONDUCT R. 8.4(b) (1983) (amended 2013), available here.

18 SeeMODEL RULES OF PROF’L CONDUCT R. 8.4(c) (1983) (amended 2013), available here.

19 SeeMODEL RULES OF PROF’L CONDUCT R. 8.4(d) (1983) (amended 2013), available here.

 

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Risk Management Best Practices Database Legal Statement

Information provided by Attorney Protective is not intended as legal advice. This publication provides best practices for use in connection with general circumstances, and ordinarily does not address specific situations. These best practices are not intended to meet or establish the standard of care, and sometimes recommend practices that exceed the standard of care. Specific situations should be discussed with legal counsel licensed in the appropriate jurisdiction. By publishing practice and risk prevention tips, Attorney Protective neither implies nor provides any guarantee that claims can be prevented by use of the suggested practices. Though the contents of Attorney Protective's Best Practice Database have been carefully researched, Attorney Protective makes no warranty as to the accuracy, applicability or timeliness of the content. Anyone wishing to reproduce any part of the Attorney Protective Best Practices Database content must request permission from Attorney Protective by calling 877-728-8776 or sending an email to erin.mccartney@attorneyprotective.com. Additionally the rules cited in the contents of this database may have since changed. You should check the laws and model rules in your state for specific information on the topics addressed here.