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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-4652" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2019/10/Depression-300x218.jpg" alt="" width="300" height="218">It&rsquo;s no secret that lawyers struggle&nbsp;at disproportionate rates&nbsp;with mental-health and substance-abuse&nbsp;issues.&nbsp; The National Task Force on Lawyer Well-Being <a href="https://www.americanbar.org/content/dam/aba/images/abanews/ThePathToLawyerWellBeingReportRevFINAL.pdf">reported</a> in 2017&nbsp;that in a study of 13,000 practicing lawyers, 28 percent struggled with depression; 19 percent struggled with anxiety; and between 21 and 36 percent qualified as &ldquo;problem drinkers.&rdquo;&nbsp; Most at risk for depression and drinking problems are &ldquo;younger lawyers in the first ten years of practice and those working in private firms[.]&rdquo;
The Task Force&rsquo;s alarming report gave rise to&nbsp;what some have called a &ldquo;<a href="https://www.texasbar.com/AM/Template.cfm?Section=articles&amp;Template=/CM/HTMLDisplay.cfm&amp;ContentID=38149">lawyer well-being movement</a>&rdquo; &mdash;&nbsp;including an ABA <a href="https://www.americanbar.org/news/abanews/aba-news-archives/2018/09/aba-launches-pledge-campaign-to-improve-mental-health-and-well-b/">lawyer-wellness pledge campaign</a> targeting law firms, <a href="https://www.americanbar.org/content/dam/aba/administrative/lawyer_assistance/ls_colap_well-being_toolkit_for_lawyers_legal_employers.authcheckdam.pdf">resource tool-kits</a>&nbsp;and broad discussions in the legal press.&nbsp; (See <a href="https://www.law360.com/search/articles?q=&amp;with_words=&amp;with_any_word=&amp;without_words=&amp;with_phrases=Pursuing+Wellness&amp;without_phrases=&amp;date_start=&amp;date_end=&amp;qx7%5B_tag%5D%5B%5D=Guest+Column&amp;submit_news=Search">here</a> and <a href="https://advance.lexis.com/search?crid=ca598d56-60bd-4275-87f8-03a9bbea0394&amp;pdsearchterms=LNSDUID-ALM-AMLAWR-gml45fgegg&amp;pdbypasscitatordocs=False&amp;pdmfid=1000516&amp;pdisurlapi=true&amp;prid=0a044c0a-0974-449d-93b8-7c333759723b&amp;srid=15d61592-28dc-4468-9b76-c5c86af0b415">here</a> (subs. req.), for instance.)
What&nbsp;are the ethics duties?&nbsp;
But what are the ethics duties of firms and their lawyers when it comes to dealing with&nbsp; an impaired lawyer?&nbsp; It is obvious that impaired lawyers may not be able to manage responsibilities to clients adequately, and may struggle to meet&nbsp;their duties of <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_1_competence/">competence</a> and&nbsp;<a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_3_diligence/">diligence</a>.&nbsp; The risks are equally obvious:&nbsp; the Task Force Report cites one study&nbsp;suggesting that &ldquo;40 to 70 percent of disciplinary proceedings and malpractice claims against lawyers involve substance use or depression, and often both.&rdquo;
The Washington, D.C. Ethics Committee issued an <a href="https://filehost.thompsonhine.com/uploads/DC-Legal-Ethics-Opinion_377_e240.pdf" target="_blank" rel="noopener noreferrer">opinion</a> earlier this month&nbsp;explaining the duties that partners, supervisory lawyers, subordinate lawyers and even non-lawyer employees have when they reasonably believe that a lawyer in the firm or government agency has a significant mental impairment that&nbsp;poses a risk to clients.&nbsp; (The same principles would apply to corporate in-house legal departments, which are included in the definition of a &ldquo;firm&rdquo; under <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_0_terminology/">Model Rule 1.0(c)</a>.)
Whether the impairment is related to age, substance abuse, a physical or mental health condition or something else, if it is ongoing or has a likelihood of recurrence, then there may be a duty to take appropriate measures,&nbsp;the Committee said in Opinion 377.
What to do
Here is a digest of some of the guidance that the Committee&nbsp;provided in Opinion 377.
<ul>
<li>If you are a law firm manager or supervise other lawyers, you must closely supervise the conduct of a lawyer you reasonably believe to be impaired, because of the risk of harm to clients.&nbsp; (See <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_5_1_responsibilities_of_a_partner_or_supervisory_lawyer/">Model Rule 5.1</a>.)</li>
<li>If the impaired lawyer&rsquo;s violation of an ethics rule raises a substantial question as to the lawyer&rsquo;s honesty, trustworthiness or fitness to practice, all lawyers, whether supervisors or not, have a duty to&nbsp;report&nbsp;it to appropriate professional authorities&nbsp; &mdash; unless client confidentiality duties (or other law) prohibits disclosure.&nbsp; (See <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_8_3_reporting_professional_misconduct/">Model Rule 8.3</a>.)&nbsp; On the other hand, client consent can lift the prohibition.&nbsp; The reporting duty is not eliminated even if the impaired lawyer is removed or leaves the firm.</li>
<li>The firm might have communication obligations to clients that are considering whether to stay with the firm or transfer their representation to the departing lawyer.&nbsp; (See <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_4_communications/">Model Rule 1.4</a>.)&nbsp; But the firm must also be cautious &mdash;&nbsp;other law&nbsp;and the impaired lawyer&rsquo;s privacy rights can limit the information permissible to disclose.</li>
<li>Mental impairment does not lessen the duties owed to clients, and a lawyer has a duty to withdraw if a mental or physical condition materially impairs the lawyer&rsquo;s ability to represent the client.&nbsp;&nbsp;(See <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_16_declining_or_terminating_representation/">Model Rule 1.16(a)(2)</a>.)</li>
<li>The firm&rsquo;s ultimate ethical obligation is to protect the interests of&nbsp;its clients, and if an impaired lawyer does not or will not take steps to address the problem, then the lawyer&rsquo;s partners, managers or supervisors must do so.</li>
</ul>
Humanity and compassion
Maintaining well-being in our stressful profession is a challenge.&nbsp; Our humanity and compassion demand that we not stand by when a colleague is&nbsp;suffering and we should&nbsp;look out for signs that someone needs help.&nbsp; Equally, our ethics obligations to our clients demand that we look to the steps we must take to ensure that their interests are safeguarded.
Every jurisdiction&nbsp;has resources to help lawyers &mdash; and law students &mdash; who are struggling.&nbsp; Here is a <a href="https://www.americanbar.org/groups/lawyer_assistance/resources/lap_programs_by_state/">link</a>.&nbsp; If you need help, try to reach out.&nbsp; And if you know someone who needs help, try to give it.

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Ethics

Legal Ethics, Professional Responsibility and the Business of Law

Dealing with an impaired lawyer:  D.C. identifies ethics duties