SC Lawyer, Jan. 2004, #4. Ethics Watch January 2004 Turning in impaired lawyers for misconduct.

• Author: By John Freeman

South Carolina Lawyer

2004.

SC Lawyer, Jan. 2004, #4.

Ethics Watch January 2004 Turning in impaired lawyers for misconduct

South Carolina LawyerJanuary 2004 Ethics Watch January 2004 Turning in impaired lawyers for misconductBy John FreemanThe data are unequivocal - alcoholism and drug abuse present the legal profession with a serious ethics problem. A majority of lawyer misconduct cases stem from some form of impairment on the respondent's part, typically alcoholism or drug abuse.

Consider the following findings - BENJAMIN SELLS, THE SOUL OF THE LAW 17 (1994) (substance abuse estimated to be tied to 70 percent of complaints against lawyers); Charles J. Santangelo & Donald W. Morrison, Alcohol Abuse on the Rise Among Lawyers, 209 N.Y.L.J. 5, 5 (1993) (claiming that in New York and California, 50 to 70 percent of all complaints against lawyers involve alcohol abuse); ABA Commission on Impaired Attorneys, An Overview of Lawyer Assistance Programs in the United States 1 (1991) (estimating that 40 to 75 percent of disciplinary complaints stem from alcohol, drugs or mental health problems); Muchogrosso, Oregon State Bar Professional Liability Fund, Profile of Legal Malpractice - A Statistical Study of the Determinative Characteristics of the Lawyers' Professional Liability Fund (May 1981) (reporting that of 100 lawyers who entered Oregon's lawyer assistance program for alcohol or drug abuse therapy, 61 percent had disciplinary complaints and 60 percent had malpractice suits pending against them). Lawyers are recognized to suffer from alcoholism and substance abuse at a rate at least twice as high as the general population. See George Edward Baily, Impairment, The Profession and Your Law Partner, 11 No. 1 Prof. Law. 2 (1999).

In the face of overwhelming evidence linking lawyer impairment and ethical misconduct, the organized bar has started to speak openly about the ethical problems impairment presents. The September 2003 Ethics Watch column discussed ABA Formal Ethics Opinion 03-429 issued in June of 2003. That opinion addressed the important issues of the obligations owed by a firm's lawyers when one of the firm's lawyers violates the Rules of Professional Conduct due to mental impairment.

This column deals with ABA Formal Ethics Opinion 03-431, which was issued in August and serves as a sequel to Opinion 03-429. Opinion 03-431...