The Impaired Lawyer

• Author: Ashley Oldham
• Pages: 40-42

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The Impaired Lawyer

BY ASHLEY OLDHAM

Substance use and mental health disorder diagnoses are

not the only causes of impairment in lawyers, however.

Impairment can creep into legal practice as our colleagues

age. It’s not uncommon for lawyers to toil away at their desks

well into their 60s, 70s, and even 80s. Having practiced law

for four or ve decades, many struggle to hang up the shingle

even when signs of cognitive decline become apparent.

A lawyer with a substance use problem or cognitive

impairment poses a number of potential ethical issues. Some

publications suggest that 40 to 70 percent of disciplinary

proceedings and malpractice claims against lawyers involve

substance use or depression, and often both. Douglas B.

Marlowe, Alcoholism, Symptoms, Causes & Treatments, in

Stress Management for Lawyers 104–30 (Amiram Elwork ed.,

2d ed. 1997) (cited in Marjorie A. Silver, Substance Abuse,

Stress, Mental Health and e Legal Profession, N.Y. State Law.

Assistant Trust (2004), available at https://bit.ly/3knHHTv).

What are our obligations as partners and members of the bar

when we suspect impairment in a fellow colleague? What can

we do as employers and colleagues to protect ourselves and

others from becoming an impaired lawyer?

When a lawyer begins to show signs of impairment, it is

It’s no secret that the legal profession has its fair share of

members dealing with substance use, mental health, and

cognitive issues. In fact, research suggests the legal

profession may have more than its fair share. In 2016, the

American Bar Association Commission on Lawyers

Assistance Programs and Hazelden Betty Ford Foundation

published a study nding that of the 13,000 practicing

lawyers it examined, between 21 and 36 percent qualify as

problem drinkers and approximately 28 percent, 19 percent,

and 23 percent are struggling with some level of depression,

anxiety, and stress, respectively. Patrick R. Krill et al., e

Prevalence of Substance Use and Other Mental Health Concerns

Among American Attorneys, 10 J. Addiction Med. 46 (2016).

It’s not dicult to identify the cause of the legal profession’s

seemingly disproportionate rates of mental health and

substance use issues. Increases in the use of drugs and alcohol

are correlated with increases of stress and pressure in an

individual’s life. Robert Holman Coombs, Drug-Impaired

Professionals (Harvard Univ. Press 1997). Between strict

deadlines, billable hours, crippling student loan debt, and the

adversarial nature of the work, stress and pressure seem to be

core tenants of the legal profession.

Published in Family Advocate, Volume 43, Number 3, Winter 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

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