Your partner has a heart attack and the first thing you do is inform the attorney discipline committee because you’re sure he can’t be as strong an advocate with a weakened heart. Absurd. Right?
So then when would it be necessary to turn in a colleague who is depressed? What if she is an alcoholic or a drug abuser and can’t be counted on to safeguard client information if she blacked out? What if he is suicidal and you worry that reporting him might prompt him to kill himself?
These were the questions an American Bar Association panel grappled with on Thursday at the New York Marriott Marquis in Times Square. Titled “Balancing a Lawyer’s Cry for Help from Dependency or Depression with Ethical Obligations of Competence and Reporting,” the panel dealt with the thorny issue of when a lawyer crosses from mental illness to impairment and should withdraw from his cases.
Joseph Milowic III, the Quinn Emanuel Urquhart & Sullivan partner who revealed his struggles with depression in the New York Law Journal a year ago, was a member of the panel. He introduced the heart attack analogy to suggest that lawyers who are mentally ill should be treated the same as those with physical illnesses.
“I think it’s important that we dispel any notion that we have to report any of our colleagues just because he comes to you with a mental health issue,” Milowic said. “That should not be the perception.”
Some of the country’s most prominent lawyers at the top of their game struggle with mental illness, said Milowic, who is the founder of the Lawyers Depression Project, a peer-to-peer mental health support group that chats online and by phone twice a week.
Richard Gaal, the co-chair of the Mental Health and Wellness Task Force for the ABA and a partner at McDowell Knight Roedder & Sledge in Mobile, Alabama, recounted how he realized he was an alcoholic at a lawyers convention in New Orleans.
“As a young lawyer, I very much loved the idea of work hard, play hard,” he said. “And New Orleans was one of my favorite places to play.”
But when he blacked out during the trip, he came to the conclusion he had a problem. He felt that he was operating at a “pretty high threshold,” but looking back now he realizes he could have been a much better lawyer. Gaal, who moderated the panel on Thursday, has been sober since 2010.
Gaal said that some of his colleagues didn’t even realize that he was a problem drinker. Perhaps that’s no surprise, considering the prevalence of such behavior in the legal profession. In the 2016 study on lawyer well-being, the Hazelden Betty Ford Foundation and the ABA Commission on Lawyer Assistance found that more than 22 percent of the nearly 13,000 working lawyers surveyed had problems with alcohol or drug use.
Gaal didn’t lose his electronic device at that conference or do anything else in his alcoholic haze that endangered clients. But what would have happened, for instance, if Gaal or any other impaired lawyer had lost an electronic device with sensitive client information while blacked out?
“Lawyers with a well-being impairment may be, under certain circumstances, at greater risk of losing one of these devices or leaving them somewhere where they may not be recovered,” said lawyer John Barkett in a report he prepared for the panel discussion.
Barkett, a Miami partner at Shook, Hardy & Bacon and a member of the ABA standing committee on ethics and professional responsibility, said it’s clear that a lawyer who commits misconduct has to be reported. But what’s less clear is when a lawyer’s impairment in itself is enough to warrant reporting if the lawyer fails to withdraw from his cases. Barkett said he never faced such a situation in his 45 years of practice.
Diana Uchiyama, executive director of the Illinois Lawyers’ Assistance Program in Chicago and a panel member, said she sometimes wonders whether lawyers join the profession with such high rates of mental illness or develop it on the job. Lawyers are often perfectionists and pessimists, two qualities that lead to depression and anxiety, she said.
While she acknowledges that everyone makes mistakes, mistakes are not often tolerated in the legal profession, she said.
Barkett described the dilemma this way: “Generally speaking, we’re not supposed to be perfect but we’re not supposed to make mistakes.”