Practicing law is a high-stress occupation characterized by a high level of responsibilities, risks and rewards. Client trust and confidence is essential to a lawyer just as trust and confidence on the part of other lawyers and judges is vital. Much of what lawyers do takes place in private without close scrutiny and with a large measure of autonomy.
With the expanding scope of information and communication technology, more and more of what lawyers do involves using technology with correspondingly less person-to-person contact. In some communities, the personal and professional bonds among lawyers have weakened in the face of economic competition, increasing specialization, as well as less personal contact. Law firm demographics have changed radically during the past few decades, notably in urban areas. Many firms have evolved into massive national law firms with a central location and numerous satellite offices with lowered decision making authority.
On the other hand, the competitive market for lawyers, plus the economic downturn, has resulted in a growing proportion of solo practitioners, many of them new lawyers, and many older lawyers who have left or retired from their firms. In other words, more lawyers choose solo practice at the outset and many turn to solo practice during the course of their careers. The impact of the recent downturn in law school admissions is yet to be felt.
For all these reasons and more, impairment of any kind, such as addiction to alcohol, drugs, or gambling, or illness and age-related problems, can be an insidious threat to the reputation and integrity of the individual lawyer, the profession as well as the interests of clients, and the courts. Impairment can produce catastrophic results by the time discovery takes place. This problem must be confronted by the legal profession and the judiciary working in cooperation with attorney assistance programs like Lawyers Concerned for Lawyers–Connecticut. In view of the changes in the culture of the profession, new initiatives are needed, centered on renewed vigilance, knowledge, education and training, and enhanced resources.
In October, LCL, the Connecticut Bar Foundation and the Connecticut Bar Association sponsored “The Impaired Lawyer Symposium,” which addressed three aspects of impairment—identifying, intervening, and future outlook. Our focus is on the future outlook for dealing with impairment, taking into account the context of intervening in impairment situations and the multiple goals of intervention which seek to provide assistance to troubled lawyers while appreciating and addressing legal and ethical factors.
The legal community has come to endorse wholeheartedly the vital goals of lawyer assistance programs, which include providing assistance to lawyers and judges who are impaired, aiding in curtailing malpractice claims and disciplinary complaints, educating the legal community about conditions that cause impairment, and educating the legal community and families of lawyers about available services. While the mission of assistance programs, such as LCL, are clear—to help lawyers save their lives, careers, and families—closer examination of the concept of intervention is necessary, however, in order to prepare the legal community to develop effective approaches to the problem.
Interventions have at least two major components—getting help for the impaired lawyer, and protecting the interests of clients, the courts and all other interested parties. In other words, the process of seeking remedial or therapeutic intervention takes place within an ethical and legal context. The impairment problem may arise in the course of a trial or appellate proceeding, in the course of an office transaction, within a law firm environment, or in other less well-defined circumstances.
Full understanding of the roles of the participants and coordination of efforts will be necessary in order to reach a satisfactory resolution on all fronts. Participants may include other lawyers with interests in conflict with the impaired lawyer, court officials, lawyer assistance program personnel and disciplinary counsel. In any given intervention, the roles of the participants will differ because the entities have different theories and purposes around intervention involving impaired lawyers. The various goals and functions of participants are achievable with proper coordination and cooperation.
The risk to interested parties and the impaired lawyer may vary on the scale of urgency depending on when and where the issue arises and what is at stake. A context that is both adversarial and urgent poses the most difficult problems. Nonadversarial circumstances pose their own problems although at first glance they may appear to be the easiest to solve. This complex topic merits discussion in a separate article.
Considerations in deciding on interventions include evaluating the circumstances in order to decide what the specific problem is, who should intervene, and the timing and method of intervening. This process includes taking into account the type of impairment at issue as well as the interests at stake, all within the context of competing ethical and legal duties. For example, if the impairment is substance-related, standard approaches are well known.
Other types of addictions call for different approaches. Disease or mental health-related impairments call for different goals and may have limited outcomes. Some impairment situations involve multiple factors leading to complex interventions. Seeking judicial intervention brings its own set of issues. Disciplinary interventions have their own procedures and are beyond our scope. Communicating with disciplinary counsel, however, may be a necessary part of the process depending on the status of risk or damage.
The overriding mission of the various participants is to get help for the impaired lawyer and to attempt, if possible, to restore the lawyer to full capacity, regardless of the nature of the impairment. The order of priorities, however, will vary from participant to participant.
For the lawyer assistance program, it will be solely to get help for the lawyer. For other lawyers and the court, if involved, it will be to comply with ethical duties, legal responsibilities in deciding when, how and by whom to intervene and, finally, remedial goals. All participants need to understand the nature of impairments, the respective roles of other participants, methods of intervening, and resources for obtaining treatment or other assistance.
A major priority, then, is to promulgate information about impairment and lawyer assistance within the entire legal community and to design protocols for all lawyers to deal with impairment situations. Obviously, only a very small segment of the entire legal community will attend any given program. The organized bar, operating at the state and local level, must step up and disseminate information widely within the bar, attempting especially to reach the most vulnerable groups—most likely solo practitioners.
Impairment issues are often pushed aside and ignored until a crisis occurs. The denial response to perceived impairment problems results in continued avoidance in the short-term, issues may be dealt with in order to solve an immediate crisis and the existing problem remains until the next crisis, which may involve different participants.
Mid-size and large firms are not immune from these problems. For example, protective measures within firms may be in place to deal with problem situations in the short term while leaving long-term problems unresolved. Such firms, however, have the capacity and resources to develop programs for caring, effective identification and intervention with remedial measures. Many already have programs that they should be persuaded to share without jeopardizing their privacy interests. Mid-sized and small firms could benefit greatly from their knowledge and experience. LCL has had very good experiences with outreach to and from the mid-size and small firms in the state. Many of them recognize LCL as a significant resource.
Solo practitioners, on the other hand, represent the most vulnerable population in the legal community because of the greatly reduced opportunity for outsiders to learn about and identify impairment problems and to find appropriate people to intervene. Solo practitioners represent the largest percentage of lawyers who contact or are referred to LCL for impairment issues. Success varies widely, but LCL believes that each individual saved from disaster is an important success. They may operate without personnel or technology resources and may be somewhat isolated from other lawyers except within adversarial or competitive situations in which they encounter other lawyers. In some cases, their economic resources may be more limited and, without backup lawyers and support staff, they may feel compelled to continue in practice even when serious impairments have developed. Clients have little protection in these situations, and outside lawyers who confront a particular problem may have little incentive to spend the time to intervene and assist once their particular contact is completed.
The profession as a whole, that is, the organized bar, needs to develop measures to do what individuals may hesitate or decline to do. Small or mid-sized firms may have more daily personal contact among lawyers that is missing in large firms, along with some resources to develop a program for intervention.
The focus of the organized bar should begin with solo practitioners. They may be among the least likely attendees at symposia on the subject, for some of the very reasons that make them—and their clients—the most vulnerable to impairment problems. One worthwhile measure to consider for the entire lawyer constituency is bringing the education process to the lawyers rather than relying exclusively on attending programs. Several small traveling teams of experts (legal and mental health), composed similar to the Impaired Lawyer symposium panels, could do hour-long presentations at law firms and local bar groups who request that service.
• Develop an impairment program at the state bar level of active mentoring and monitoring for solo practitioners who often lack a collegial community as well as resources and support staff.
• Present a seminar on proposed methods of dealing with impairment arising in adversarial situations—court or transactions—solving hypothetical problems.
• Focus on ethical duties, protecting clients and the court, and referring for therapeutic purposes.
• Bring education and training programs to the lawyers and law firms
• Encourage midsize and large firms to share expertise and preparation
• Send the message that, in this profession, which operates with autonomy and is self-protective and reluctant to interfere with other lawyers, that intervening is not interfering.•