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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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<p><img style="max-width: 100%;height: auto" width="561" height="347" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/1019/2018/07/Compassion-fatigue.jpg" class="attachment-lxb_af_3_of_4-wide size-lxb_af_3_of_4-wide wp-post-image" alt="" loading="lazy" /></p>
			<p>Lawyers face tremendous professional stress in the best of times between long hours, deadlines, and the adversarial nature of the work itself. The landmark 2016 report, The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys<a id="_ftnref1" href="#_ftn1">[1]</a>, showed that attorneys experience problematic drinking at a rate much higher than other populations and are reluctant to seek help for substance abuse, depression, anxiety, and stress and do not seek out help because of concerns regarding privacy or confidentiality. For many, their stressors were exacerbated by the COVID-19 pandemic and the demands of remote practice. Failure to seek out that help causes many problems, including disciplinary violations when mental health impacts a lawyer&rsquo;s performance.</p>
<p>While disciplinary authorities generally take mental health issues into account and often consider them a proper basis for mitigating sanctions, such problems are not a defense to disciplinary charges, as the West Virginia Supreme Court of Appeals recently concluded. In that matter, the court addressed complaints against a lawyer whose mental impairment was deemed to have impacted his client representation. While finding that the impairment was a mitigating factor, the court concluded that the impairment would not shield the lawyer from meaningful sanctions and <a href="http://www.courtswv.gov/supreme-court/docs/fall2022/20-0233-walker-p.pdf" target="_blank" rel="noreferrer noopener">imposed</a> an active two-year suspension for the misconduct.</p>
<h2 class="wp-block-heading">Lack of communication and diligence</h2>
<p>As is typical for lawyers with impairments, the lawyer at issue failed to communicate with numerous clients regarding their cases. He was found to have committed over 50 violations. Violations of his duty to provide <a href="http://www.courtswv.gov/legal-community/court-rules/professional-conduct/rule1.html#rule1.1" target="_blank" rel="noreferrer noopener">competent</a> representation, <a href="http://www.courtswv.gov/legal-community/court-rules/professional-conduct/rule1.html#rule1.4" target="_blank" rel="noreferrer noopener">communicate</a>, and act with <a href="http://www.courtswv.gov/legal-community/court-rules/professional-conduct/rule1.html#rule1.3" target="_blank" rel="noreferrer noopener">diligence</a> were found in almost every instance of misconduct.</p>
<p>In one case, he failed to notify his clients that the opposing party had filed a counterclaim and never responded to the counterclaim. Opposing counsel requested the court dismiss the clients&rsquo; claims because of the lawyer&rsquo;s repeated failure to obey court orders or rules of discovery. The lawyer never responded to the motion&mdash;and the court dismissed the claims.</p>
<p>Another client learned that opposing counsel filed a motion to dismiss for the lawyer&rsquo;s failure to prosecute. When the client attempted to contact the lawyer, he would not respond. The court ordered the lawyer to respond, and when he failed to do so, the court dismissed the client&rsquo;s lawsuit.</p>
<p>Yet another client retained the lawyer to defend her in a contract dispute. She asked the lawyer to file a counterclaim. He never did. He failed to present to the client the opposing party&rsquo;s settlement offer prior to its expiration. The jury ended up awarding the opposing party thousands of dollars. Despite the lawyer&rsquo;s promise to appeal, he never did.</p>
<h2 class="wp-block-heading">Meaningful sanction</h2>
<p>The lawyer presented evidence at the hearing that he was diagnosed with an adjustment disorder, which his mental health counselor attributed to stress and other emotional struggles. The social worker involved testified that due to the disorder, the lawyer &ldquo;developed the capacity to avoid [and] became less productive.&rdquo;</p>
<p>The Hearing Panel Subcommittee (HPS) recommended the lawyer be suspended for two years, but that the suspension be stayed. However, the Office of Disciplinary Counsel objected to the stay of the suspension. Ultimately, the court found the social worker never determined the lawyer was unable to understand the consequences of his actions and that the lawyer therefore acted knowingly when he disregarded the authority of the lower courts and his clients&rsquo; interests. The court made clear that when the Rules of Professional Conduct are violated, lawyers can inflict more than just monetary harm&mdash;of which malpractice settlements alone cannot cure.</p>
<p>The court found that the lawyer&rsquo;s mental impairment was a substantial contributing factor in his misconduct. The court found due to that and other mitigating factors, the lawyer&rsquo;s sanction was reduced to an active two-year suspension. The court found that without imposing significant consequences, this type of misconduct would not be deterred in the future nor would confidence in the profession be reestablished.</p>
<h2 class="wp-block-heading">The dissent</h2>
<p>Justice Wooten concluded that the penalty was &ldquo;draconian&rdquo; in his <a href="http://www.courtswv.gov/supreme-court/docs/fall2022/20-0233-sep-wooton-p.pdf" target="_blank" rel="noreferrer noopener">Dissenting Opinion</a>, predicting that imposing such sanction on a solo practitioner would be the death penalty for his career. The dissent rejected the majority&rsquo;s finding that the lawyer was motivated by greed&mdash;pointing to evidence that the lawyer was motivated by a depression that &ldquo;caused him to ignore his duties to his clients and then stick his head in the sand as things fell apart.&rdquo; The dissent would have made three months of the two-year suspension active, with the rest to be stayed on supervised probation.</p>
<h2 class="wp-block-heading">Action steps</h2>
<p>This lawyer is certainly not alone in his struggle&mdash;especially with depression <a href="https://www.americanbar.org/groups/gpsolo/publications/gp_solo/2022/september-october/mental-health-lawyers-paradigm-must-shift/" target="_blank" rel="noreferrer noopener">rates</a> remaining high for lawyers. When a lawyer thinks they have an issue, they should address it, as mental health issues can impact <a href="https://www.americanbar.org/groups/young_lawyers/publications/after-the-bar/professional-life/how-to-talk-about-mental-health-with-your-employer/?utm_medium=email&amp;utm_source=salesforce_605456&amp;sc_sid=05693860&amp;utm_campaign=MK20CNTT&amp;promo=MKCONTENT1&amp;utm_content=&amp;additional4=&amp;additional5=&amp;sfmc_j=605456&amp;sfmc_s=185984482&amp;sfmc_l=2201&amp;sfmc_jb=19006&amp;sfmc_mid=100027443&amp;sfmc_u=17863200" target="_blank" rel="noreferrer noopener">competent representation, the ability to act with diligence, and the ability to effectively communicate</a>. Once the damage is done, it can be hard for a client to be made whole, so addressing a problem before it affects any client is key to maintaining compliance with our ethical duties. When clients are hurt and lawyers lose their ability to practice law, there are no winners. If you are showing signs of experiencing mental health issues, don&rsquo;t ignore them. And undoubtedly, as we have pointed out <a href="https://www.thelawforlawyerstoday.com/2019/10/dealing-with-an-impaired-lawyer-d-c-identifies-ethics-duties/" target="_blank" rel="noreferrer noopener">before</a>, lawyers should be compassionate and look for signs a colleague needs help rather than just watching from a distance. A Directory of Lawyer Assistance Programs by state can be found <a href="https://www.americanbar.org/groups/lawyer_assistance/resources/lap_programs_by_state/" target="_blank" rel="noreferrer noopener">here</a>. There are plenty of options for lawyers and effective treatment does not include a one-size-fits-all approach. Fortunately, <a href="https://courtnewsohio.gov/happening/2022/CharacterRuleChange_120622.asp#.Y5C838vMI2w" target="_blank" rel="noreferrer noopener">strides</a> are being made when it comes to the view of mental health in our profession.</p>
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<p><a href="#_ftnref1" id="_ftn1">[1]</a> Krill PR, Johnson R, Albert L. The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys. J Addict Med. 2016 Jan-Feb;10(1):46-52.</p>

core/freeform

Ethics

Assistant Counsel

Amy G. McClurg

Legal Ethics, Professional Responsibility and the Business of Law

Impairment considered mitigating factor but insufficient to shield from meaningful sanctions