Law Firm Management Of Mental Impairment

While no statistics definitively set forth the significance of mental impairment as a direct cause of legal malpractice claims, TLIE has witnessed numerous claims that appear to be caused or exacerbated by mental impairments. On many occasions, alcoholism and substance abuse have been significant contributing factors to claims. A significant number of recent claims seem to be related to age-related mental impairments. Undoubtedly, depression and other mental illnesses lurk beneath the surface of claims where lawyers “drop the ball” in some manner.

A number of studies have indicated that lawyers suffer disproportionately from a number of mental impairments. ABA Formal Opinion 03-429, Obligations with Respect to Mentally Impaired Lawyer in the Firm, cites a 1999 article stating that lawyers suffer from “alcoholism and substance abuse…at a rate at least twice as high as the general population.” A number of other studies hint at the extent of the problem:

A 1991 study by the North Carolina Bar Association showed that 26% of its member had symptoms of clinical depression, compared to 3% to 9% of the general population.

Studies of professions have ranked lawyers as the most or nearly the most depressed of all professionals.

Substance abuse has been claimed to factor into as many as 80% of disciplinary complaints.

This article will discuss how law firms and lawyers should deal with mental impairment. Impairment presents several dilemmas that are quite challenging.

ABA Formal Opinion 03-429 details the ethical obligations of lawyers in a law firm with respect to mentally impaired lawyers in the firm. The key points of the opinion are as follows:

Firm partners and supervising lawyers are required to take steps to assure that a mentally impaired lawyer does not violate disciplinary rules. It should be noted that Texas does not have a corollary to ABA Model Rule 5.1(a), which requires partners in a firm to “make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct..” Comment 6 to Rule 5.01 of the Texas Rules of Professional Conduct states that there is only a “moral compunction” to make such efforts. Nonetheless, from a malpractice standpoint the firm still is responsible for the acts of a mentally impaired lawyer, so partners should take such steps even if not required by the disciplinary rules.
If a firm member has violated a disciplinary rule because of mental impairment, the violation must be reported to disciplinary authorities if it reflects on the lawyer’s honesty, trustworthiness or fitness to practice. If the impairment was short term and has ended, or if the lawyer is being supervised so that his or her actions cannot harm the client, the matter does not have to be reported.
If a client has been affected by a breach of the rules by an impaired lawyer, firm lawyers may be required to discuss the effect of such a breach with the client and the nature of the impairment. This includes any clients who may have chosen to follow a departing lawyer to a new firm. The firm members discussing the impairment “must act with candor and avoid material omissions, but to the extent possible, should be conscious of the privacy rights of the impaired lawyer.”
Obligations to discuss the effects of an impairment with clients are not terminated when an impaired lawyer leaves the firm. Clients are entitled to information necessary to making an informed choice about counsel. Once a client has chosen the impaired lawyer, the firm should avoid communications with such clients that appear to endorse the competence of the impaired lawyer.

The ABA Opinion creates a number of difficult choices for the firm in dealing with impairment. Creating a system to identify impairments is critical, but there is tension among the necessary elements of such a system.

Impairment may develop in a person at any level of the firm. When the impairment is of a key partner or shareholder, it is difficult for anyone to come forward and discuss the possibility that the lawyer is impaired. Even when the impaired lawyer is younger, a paralegal or secretary may be unwilling to report the impairment. If their boss loses their job, a subordinate rightly wonders what will happen to their job. Confidential reporting of impairments should be fostered by firm policies.

Whether an impaired lawyer should be fired or given a chance at rehabilitation is often a difficult decision. First and foremost, the firm must protect its clients from the effect of impaired thought and action. However, a zero-tolerance policy with regard to substance abuse has adverse side effects. Significant investments of time and training may have been provided to the impaired person, and losing that expertise may not benefit the firm. Mandatory dismissal in such situations is counterproductive, particularly if the person seems to be productive enough to continue to contribute to the firm. Firm policies should encourage reporting and treatment, but allow the firm to protect clients and the firm if rehabilitation is not feasible.

The decision to retain or fire a person with a mental impairment should be assessed in the light of employment law. Footnote 5 to the ABA Opinion notes that the opinion does not address employment law implications, such as the effect of the Americans with Disabilities Act. Some mental impairments are subject to the act if an accommodation can be made. “Current users” of illegal drugs are not protected by the ADA, but rehabilitated users can be. Alcoholics generally are protected by the ADA. Protection under the ADA does not necessarily preclude firing, but it may complicate the issue. The Health Insurance Portability and Access Act could prohibit use of private information about the impairment obtained in the course of administering the firm’s health insurance plan. Consulting an employment law specialist when making decisions about impairment is critical.

Firms should have a system that allows confidential reporting of mental impairments. The firm should develop an approach to treatment of impairment and carefully define extreme situations in which termination will result, in consultation with employment law experts, while keeping its obligations to clients in mind. Perhaps most important, this is not a subject that should remain simply on paper. Personnel throughout the firm should be educated on the firm’s approach to impairments.

By Jett Hanna