National Association of Attorneys General

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Ethics Corner | Managers as Caretakers: Rule 5.1

In November 2016, the U.S. surgeon general issued a report titled “Alcohol, Drugs, and Health.” The first paragraph of the Executive Summary states:

In 2015, over 27 million people in the United States reported current use of illicit drugs or misuse of prescription drugs, and over 66 million people (nearly a quarter of the adult and adolescent population) reported binge drinking in the past month. Alcohol and drug misuse and related disorders are major public health challenges that are taking an enormous toll on individuals, families, and society. . . . It is estimated that the yearly economic impact of substance misuse is $249 billion for alcohol misuse and $193 billion for illicit drug use.1

Early last year, a study conducted by the American Bar Association (ABA) and the Hazelden Betty Ford Foundation was published in the Journal of Addiction Medicine. The study concluded that attorneys “experience problematic drinking that is hazardous, harmful, or otherwise consistent with alcohol use disorders at a higher rate than other professional populations.”2 In fact, as high as one in three practicing lawyers are problem drinkers. The study also found that 28 percent of the 12,825 attorneys studied suffered depression and 19 percent show symptoms of anxiety. The Hazelden study noted that being in the early stages of one's legal career is strongly correlated with a high risk of developing an alcohol use disorder.3

Regarding drug use other than alcohol, 10.2 percent reported using marijuana (compared to 7.5 percent of the general population). According to the National Institute on Drug Abuse, several studies have linked marijuana use to increase risk for disorders such as depression, anxiety, and substance use disorders.4 Users of marijuana often experience impaired short-term memory, impaired judgment and attention, and anxiety during use.5 One commentator stated that some studies suggest that attorneys abuse cocaine at twice the rate of non-lawyers.6

Another issue our profession is facing is that there are more Americans, including lawyers, working over the age of 65. For instance, there has been a 110 percent increase in Americans working over the age of 75.7 The increase in the age of practicing attorneys reflects this trend. In 1980, the median age of lawyers was 39; today, the median age is 49.8 Although many of these older lawyers are extremely valuable members of their profession with their experience and expertise, there is an undeniable connection between aging and cognitive decline. Recognizing this concern, in 2014, the ABA hosted a conference on “Cognitive Decline: Assessing and Assuring Professional Competence in Lawyer Clients and Partners.” 

Couple these issues with the Centers for Disease Control and Prevention statistic that lawyers rank fourth in suicides, behind dentists, physicians, and pharmacists, compared to suicides in other professions9 and we are confronted with the fact that our profession is struggling with substance abuse and mental health issues in a much higher proportion than the general population.

But what do these lamentable statistics regarding substance abuse and the concerns about aging lawyers with possible cognitive issues have to do with the topic of ethics? An ABA survey of malpractice cases from California and New York determined that 50 to 70 percent involved an alcohol-impaired attorney.10 Rule 5.1 and 5.3 of the ABA Model Rules of Professional Conduct require lawyers who have managerial responsibility to make reasonable efforts to ensure that the lawyers they supervise conduct themselves ethically. In 2003, the ABA issued Formal Op.03-42911 that stated affirmatively that “if a lawyer’s mental impairment is known to partners in a law firm or a lawyer having direct supervisory authority over the impaired lawyer, steps must be taken that are designed to give reasonable assurance that such impairment will not result in breaches of the Model Rules.” State bars have been slow to address the issue. Kansas issued Legal Ethics Opinion (LEO) No. 14-01 in 2014, which indicated that referring an impaired attorney to a Lawyer Assistance Program would satisfy the professional obligation so long as no ethical lapses have occurred.12 North Carolina issued an extensive response to queries regarding an impaired attorney and the overlap with Rule 8.3 also suggests making a confidential report to the Lawyer Assistance Program. However, if there has been an ethical breach by the impaired attorney, there also must be a report to the state bar appropriate disciplinary authorities.13 

Virginia recently issued draft LEO 1886, Duty of Partners and Supervisory Lawyers in a Law Firm When a Lawyer in the Firm Suffers from Significant Impairment.14 In discussing the scope of the issue, the LEO points out that the substantial increase in aging lawyers presents challenges to state bars.15 The Florida Bar has realized that dealing with an aging attorney who is showing difficulty is much more complicated than dealing with an attorney with a substance abuse issue. Its Committee on Professionalism is suggesting that offices work out plans that would allow a lawyer to continue work, providing expertise and experience, perhaps with reduction or elimination of particular duties and with assistance from associates.16 The Florida Lawyers Assistance Program worked with the Ohio State University Medical Center to place an on-line self-administered gerocognitive exam (SAGE) that attorneys can take.< sup>17

What does this mean for supervisors in an Attorney General’s Office? In order to comply with the ethical requirements, offices should have enforceable policies in effect that would require that an impaired lawyer seek appropriate counseling and assistance in order to maintain employment and find ways to assist when there is evidence of cognitive impairment. Under Rule 5.1, supervisors cannot turn a blind eye to evidence that an attorney may be impaired through substance abuse or a mental health issue. It is important to remember that a lawyer with an impairment will seldom seek assistance for himself. No matter how uncomfortable it might be to confront a staff member with this issue, managers and supervisors not only have the ethical obligation to do so, but they also have a human obligation to be concerned about a colleague’s well-being and assist him or her to obtain the services needed and/or adjust work demands to ensure ethical performances.

Endnotes

1Available at https://addiction.surgeongeneral.gov/key-findings.

2 Patrick Krill et al., The Prevalence of Substance Abuse and Other Mental Health Concerns Among American Attorneys, 10 J.Addiction & Mental Health, 46, 52 (2016), http://journals.lww.com/journaladdictionmedicine/Fulltext/2016/02000/The_Prevalence_of_Substance_Use_and_Other_Mental.8.aspx

3Florida estimates that roughly 15 percent of Florida Bar members will develop a problem with alcohol or drugs at some time during their careers, translating to almost 10,000 lawyers at risk. Richard B. Marx, “Impaired Attorneys and the Disciplinary System” Florida Lawyers Assistance, http://fla-lap.org/literature/1299-bar-journal/impaired-attorneys-and-the-disciplinary-system/

4 R. Radhakrishnan et al., Gone to Pot - A Review of the Association between Cannabis and Psychosis. 5 Front Psychiatry 54 (2014), cited in Nora Volkow, Nat’l Inst. Drug Abuse, Marijuana,  (rev. 2014), https://www.drugabuse.gov/publications/research-reports/marijuana/letter-director

5 Nora Volkow, id.

6 David Escamilla, A Devastating Disease Rampant Among Attorneys,The Prosecutor 43(July-Aug. 2013). The author does not provide a citation for this statistic.

7 Kendra L. Basner, “Aging Population of Lawyers Means Colleagues Need to Keep Watchful Eye, ABA/BNA (2014), http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/current_reports_article_on_aging_lawyers_sept_2014.authcheckdam.pdf

8 Brandon Gaille, “Thirty Mind-Boggling Lawyer Demographics,” Blog (Feb. 8, 2016), http://brandongaille.com/30-mind-boggling-lawyer-demographics/

9 Rosa Flores and Rosa Marie Arce, “Why Are Lawyers Killing Themselves,” CNN (Jan. 20, 2015), http://www.cnn.com/2014/01/19/us/lawyer-suicides/

10 G. Andrew H. Benjamin et al., Comprehensive Attorney Assistance Programs: Justification and Model, 16 L. and Psychology Rev. 118 (1992), cited by Rick B. Allan, Alcoholism, Drug Abuse and Lawyers: Are We Ready to Address the Denial?, 31 Creighton L. Rev. 266 (YEAR?).

11Available at http://www.americanbar.org/content/dam/aba/migrated/cpr/clientpro/03_429.authcheckdam.pdf

12 Available at https://www.ksbar.org/news/180187/KBA-ethics-opinion-Duty-to-report-attorney-memory-lapses.htm

13Available at https://www.ncbar.gov/for-lawyers/ethics/adopted-opinions/2013-formal-ethics-opinion-8/?opinionSearchTerm=mental%20impairment

14 LEO 1886 (draft) (July 21, 2016), http://www.vsb.org/docs/draft-1886-072116.pdf

15 In Virginia, over 11 percent of practicing attorneys are over 65. Id.

16Jan Pudlow, “Bracing for the “Tsunami” of Aging Florida Lawyers, Fla. Bar News (Nov. 15, 2012), 

http://www.floridabar.org/DIVCOM/JN/jnnews01.nsf/cb53c80c8fabd49d85256b5900678f6c/72e75e7aa48dea0685257aad004663ee!OpenDocument&Highlight=0,bracing,for,the*

17 SAGE (Self-Administered Gerocognitive Exam) – Test for Cognitive Decline, http://fla-lap.org/self-tests/sage-self-administered-gerocognitive-exam-test-for-cognitive-decline/

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