Evaluating an Impaired Attorney’s Fitness to Practice

The legal profession has experienced a great deal of change in the last few decades, not only in the number of practitioners but also in the ever-increasing complexity of legal practice. (See “Lawyer 4.0: the skills needed for the totally modern legal professional.”)

While attending law school and becoming an attorney remains a professional ambition of many people, few realize the psychological costs and risks associated with achieving this goal. (See Killing Them Softly: Neuroscience Reveals How Brain Cells Die from Law School Stress and How Neural Self-Hacking Can Optimize Cognitive Performance.) Despite the challenges of graduating from law school, passing the state bar exam, and finding suitable work to pay for the typical law school debt, the number of lawyers is expected to increase. According to the ABA National Lawyer Population Survey, there were 1,338,678 active attorneys practicing in the United States as of 2018. The Law School Admission Counsel also noted that law school applicants are up 8.3% and applications are up 9% from 2017 to 2018. The Bureau of Labor Statistics Occupational Outlook Handbook states, “Employment of lawyers is projected to grow 8% from 2016 to 2026, about as fast as the average for all occupations. Competition for jobs over the next 10 years is expected to be strong because more students graduate from law school each year than there are jobs available.” In addition, many lawyers and judges continue to practice long after retirement age. This not only creates problems regarding job competition but also focuses on concerns that accompany cognitive decline associated with increasing age. (See, How to recognize and manage cognitive impairment in aging lawyers.)

The practice of law remains one of the most stressful and psychologically challenging professions. Research conducted by the Hazelden Betty Ford Foundation and the American Bar Association Commission on Lawyer Assistance Programs in 2016 demonstrated that attorneys continue to suffer disproportionally high rates of mental illness and substance abuse. Lawyers in private practice also confront very high levels of stress and exhaustion that accompany continuous conflict with peers, clients, and opposing counsel. The psychological toll of legal practice can be considerable, and can often lead to the development of psychological and physical problems. These problems can then lead to an impairment that can manifest as professional misconduct or incompetence.

Cases where an attorney is suffering from impairment present a unique challenge not only to the administration of law but also to the licensing bodies charged with enforcing attorney discipline. Because our interaction with the law is so pervasive, our legal system relies on the professional abilities and training of attorneys to competently perform their duties to protect the interest of clients and organizations. Just like every other profession, state bar organizations, licensing bodies, and managing partners must find ways of dealing with attorneys who become incompetent due to an impairment. It is important to note that impairment in this context describes a situation where the attorney is unable to practice law with reasonable skill because of a mental illness or substance use disorder that significantly affects their cognitive or perceptual ability. (See Recognizing Signs of Impairment in the Aging Attorney.) The mere fact that an attorney is showing signs of psychiatric symptoms is not equivalent to impairment.

The list of disorders that can cause attorney impairment is vast and often goes unrecognized. Untreated mental illness or substance abuse has the potential to severely disrupt the workplace and impair an attorney’s ability to provide competent representation. Untreated mental illness, cognitive decline, and substance abuse can and often does lead to an inability to manage caseloads, case stagnation and neglect, and in more serious cases, real client harm. Psychiatric disorders often occur in combination with each other and take place in the context of the attorney’s life. Co-occurring disorders are common and one disorder may lead to the development of another. For example, an attorney suffering from anxiety or depression may develop a substance use disorder as a way to cope or self-medicate.

In many cases, the actions (or lack of action) an attorney takes that can lead to professional discipline or malpractice that highlight the presence of mental illness or a substance use disorder. For example, an attorney could demonstrate a pattern of conduct that may include missed deadlines, missed appointments, last-minute requests for continuances, frequent absenteeism, failing to return client phone calls or respond to mail, co-mingling or taking client trust funds, or making false representations. The attorney may also demonstrate a number of behaviors at work that appear different from their prior functioning. For example, an attorney may become socially withdrawn, procrastinate, have unpredictable and frequent mood swings, demonstrate unwarranted anger or hostility, and blame others for personal failings. All of these examples may be the product of depression, anxiety, neurological dysfunction, gambling addiction and/or substance use disorder, just to name a few.

For instance, two of the most common mental health problems affecting attorneys are anxiety and depression. (See, Study Indicates Lawyers Struggling With Substance Use And Other Mental Health Issues.) A depressed attorney will typically demonstrate low motivation, low energy, fatigue, and difficulty concentrating. At work, such an attorney may take a long time to learn something new or to respond to client calls or answer mail. They may avoid responding to important emails, mail, or phone calls out of irrational panic or fear. The lawyer may procrastinate and leave a job unfinished for someone else to complete, come into work late, leave early, or not come into the office at all for several days. They may file motions or briefs that omit important details because the attorney could not concentrate and could not remember specific information. Work would be completed late, or not at all, and would contain major mistakes. If the lawyer’s supervisor commented on this performance or offered constructive feedback, the depressed attorney is likely to respond with anger and irritability. To this attorney, everything would sound like criticism, resulting in angry responses or blaming others for mistakes. Even if the supervisor would ask the lawyer to redo something or to correct a problem, the lawyer would likely feel overwhelmed and too stressed to manage. This attorney’s ability to tolerate stress and cope with the everyday demands of clients, partners, opposing counsel, or judges becomes severely compromised to the point where the lawyer is unable to practice competently. Clearly, attorneys are not mental health professionals and cannot diagnose themselves or their colleagues. What can and should be done in such cases?

If we look at the ethical standards embodied in the Model Rules, Rule 1.16 (a)(2) prohibits a lawyer representing or continuing to represent a client where “the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.” In examining this issue, the ABA Standing Committee on Ethics and Professional Responsibility determined that “impaired lawyers have the same obligations under the Model Rules as other lawyers,” in Formal Opinion 03-429. The Committee writes, “Simply stated, mental impairment does not lessen a lawyer’s obligation to provide clients with competent representation.” The opinion does provide some direction: “[W]hen considering what must be done when confronted with evidence of a lawyer’s apparent mental disorder or substance abuse, it may be helpful for partners or supervising lawyers to consult with an experienced psychiatrist, psychologist, or other appropriately trained mental health professional.”

An initial referral can include consultation with a state Lawyer Assistance Program (LAP). Almost every state now has a lawyer assistance program that can provide some form of intervention and support to the impaired attorney. Many such programs are run by volunteers or other attorneys who are in recovery. LAP programs differ widely in what services they are able to provide, so be sure to check to see what your state organization is able to offer. Some LAPs merely provide referrals to mental health professionals in the community, while others may have mental health professionals on staff. Regardless, it is unlikely that many lawyer assistance programs are able to perform what may ultimately be necessary, which is a fitness to practice evaluation.

A fitness to practice law evaluation will be able to determine how psychiatric symptoms are related to the specific functional impairment of attorney performance. That is, the evaluation will determine how the symptoms that are present are impacting an attorney’s ability to carry out their daily work activities. A psychological fitness for duty evaluation is a formal, structured, and highly specialized examination of an attorney that occurs when objective evidence shows that the attorney is unable to safely or effectively carry out their job. A referral for such an evaluation should be made when there is a reasonable basis for believing that the cause is attributable to a psychological condition. This same definition is used when police officers are referred for fitness for duty evaluations. Many psychiatric disorders are chronic conditions that only worsen over time and can have very dire consequences. (See, “Recent Law School Graduate Commits Suicide After Failing Bar Exam“, and “Cheryl Hanna’s Suicide Confirms Mental Health Problems in Vermont.”) Because such an evaluation can have profound consequences for the attorney and may become evidence in an administrative or civil hearing, the psychologist should be guided by the Specialty Guidelines for Forensic Psychology in addition to other relevant professional standards.

In conducting such an evaluation, the forensic psychologist will typically review the relevant records, conduct a detailed clinical interview, conduct specialized psychological testing, and obtain multiple collateral information before formulating an opinion. Sometimes an evaluation may reveal neurological or medical problems that will necessitate a referral to other professionals, such as a neurologist or a neuropsychologist. At the end of the process, the forensic psychologist will write a comprehensive report and make appropriate recommendations to the attorney, the attorney’s employer, and any administrative agency. The information obtained can then be used in mitigation of wrongful conduct, to determine suitable work accommodations, assist in deciding applicable discipline, as well as provide treatment and rehabilitation recommendations.

A timely referral and evaluation can lead to a much better outcome, not only for the attorney but also for the firm and the licensing agency. Many psychiatric conditions can be effectively treated with a combination of individual and/or group therapy, medication management and, if applicable, reasonable work accommodation. Opportune intervention can prevent potential client harm, protect the public, protect firm reputation, and ultimately may save a lawyer’s career and sometimes, their life.

About the Author

Dr. Alex Yufik is a licensed attorney and a board certified forensic psychologist. Contact him at 800.810.5743 or Yufik@Lawpsychologist.com.

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