Lawyer Impairment and Related Ethical Considerations

• Citation: Vol. 25 No. 01
• Publication year: 2021
• Year: 2021

Lawyer Impairment and Related Ethical Considerations

by Lennes N. Omuro

It is often said that lawyers suffer from impairment issues more than the general public. In February 2016, the ABA and the Hazelden Betty Ford Foundation published the results of a collaborative research project (the ABA Hazelton study) that confirmed that lawyers do indeed suffer from substantial rates of behavioral problems including alcohol dependent drinking, depression, anxiety and stress.¹ The ABA Hazelden study involved surveys of 12,825 licensed employed attorneys from all regions of the country and is likely the most comprehensive study to date of its kind.

In particular, between 20.6 percent to 36.4 percent of the lawyers in the ABA Hazelden study screened positive for problematic drinking: hazardous, harmful and potentially alcohol dependent drinking.² In comparison, only 11.8% of a broad highly educated workforce screened positive in another study.³ These results are comparable to earlier studies.⁴ However, in contrast to earlier studies which found a positive association between increased problematic drinking and increased years in the profession, the ABA Hazelden study found a direct reversal of that trend with attorneys in their first ten years of practice now experiencing the highest rates of problematic alcohol use. Junior associates were found to have the highest rates of problematic use followed by senior associates, junior partners, and finally, senior partners.

The ABA Hazelden study also found that levels of depression, anxiety, and stress among lawyers were significant with 28%, 19%, and 23% of the lawyers experiencing mild or higher levels of depression, anxiety, and stress, respectively. Similar to the trend of alcohol use, these mental health issues were most prevalent for younger, newer attorneys and generally decreased as both age and years in the profession increased.

In addition to problematic alcohol use and the mental health issues addressed in the ABA Hazelden study, lawyers also suffer from drug usage and other mental health issues including those associated with aging.⁵ Lawyer impairment is a significant issue in the profession and raises a number of ethical considerations. What should you do if you think you are impaired? What should you do if you suspect a lawyer in your firm is impaired? What should you do if you suspect another lawyer who is not in your firm is impaired?

The Impaired Lawyer's Ethical Obligations

Impaired lawyers have the same ethical obligations under the Hawaii Rules of Professional Conduct ("HRPC" or sometimes the "Rules") as any other lawyer. Mental impairment does not affect the lawyer's duty to provide competent representation to clients. Lawyer impairment is also specifically addressed under HRPC Rule 1.16(a)(2), which states that a lawyer shall withdraw from representation of a client "if the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client."

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Unfortunately, impaired lawyers may not be aware of their impairment or they may be in denial of the fact that their impairment is affecting their ability to represent clients. Moreover, even lawyers who recognize that they may be impaired often do not seek treatment or bring their impairment to the attention of appropriate persons in their firm. At least one study has concluded that the primary obstacle that prevented lawyers from accessing care was the belief that they could handle the problem on their own.⁶ As also suggested in the ABA Hazelden study, pervasive fears surrounding an attorney's reputation is also a barrier to treatment. Therefore, although lawyers theoretically have substantial access to resources for therapy, treatment, and other support through health plans, lawyer assistance programs or individual financial resources, it is not clear that lawyers avail themselves to these resources particularly when working in a high stakes or highly competitive environment. Accordingly, it...