Steve Schwartz
As published in the May 2024 edition of Missouri Lawyers Weekly
An impaired lawyer can be a risk for a malpractice claim but can also affect a firm’s reputation and can cause the firm to lose clients. It is crucial for law firms to have strategies in place to mitigate those risks.
Lawyer impairment can take the form of drug or alcohol addiction, mental illness, or Alzheimer’s disease. We have defended lawyers in malpractice suits and ethics complaints after they committed a serious error while impaired by depression or substance abuse. Often the reason the lawyer missed a deadline or failed to respond to a client was not obvious. Impaired lawyers do not usually want to reveal the reasons they are making mistakes.
Dealing with a lawyer with any of these issues often requires the involvement of firm management, human resources and, sometimes, labor law expertise. Concern for the affected lawyer must be balanced against responsibility to clients, to the firm itself, and to the firm’s responsibilities under the ethics rules. Missouri Supreme Court Rule 4-5.1 provides that a partner in a law firm or a lawyer having supervisory authority over another lawyer shall make reasonable efforts to ensure the subordinate lawyer complies with the ethics rules. The Rule also specifies instances when a lawyer may be held responsible for another lawyer’s violation of the Rules of Professional Conduct. Thus, it is crucial for law firm partners and managers to be aware of any problems other lawyers may have that would affect their competence to practice.
The first step in dealing with impaired lawyers is recognizing the signs. These can include consistent tardiness, missed deadlines, missed meetings, erratic behavior, or a noticeable drop in performance. It is crucial for law firms to foster an environment where such signs can be reported without fear of retaliation.
Protecting Clients
While it’s important to support impaired lawyers, law firms must also take steps to protect their clients. The ethics rules are clear: a lawyer’s ethical duty is to their client first. If an attorney’s impairment hinders their ability to represent a client effectively, the firm must act. This may involve:
Confrontation and Intervention: A delicate but necessary step is a conversation with the lawyer about the potential impairment. The firm should express concern and offer support while emphasizing the ethical obligation to the client.
Workload Adjustments: For mild or temporary impairment, the firm may reassign cases or provide additional supervision to ensure client matters are not jeopardized.
Implementing Policies
Law firms should have clear policies in place to address impairment. These policies should outline the steps to be taken when impairment is suspected or reported and should be communicated to all members of the firm. Having such policies not only provides a roadmap for action but also demonstrates the firm’s commitment to addressing this issue. The policies should include:
The importance of confidentiality: A lawyer’s personal struggles deserve privacy. The firm should only disclose information about the impairment on a need-to-know basis with the lawyer’s consent.
Providing clear support options: The firm policy should outline resources available to the impaired lawyer, including employee and lawyer assistance programs.
Encouraging self-disclosure: A supportive environment where lawyers feel comfortable seeking help is crucial. All lawyers should be told that seeking help is not a sign of weakness but a sign of strength and commitment to professional responsibility.
Promoting Wellness
Prevention is always better than cure. Law firms should promote wellness among their lawyers to prevent impairment. This could involve encouraging work-life balance, providing resources for stress management, and fostering a supportive work environment.
Impairment often arises when a lawyer is going through a major life crisis (e.g., divorce, death of a loved one, serious illness). Other members of the firm should check in with the lawyer to make sure they are able to handle their situation.
Conclusion
Dealing with impaired lawyers is a complex issue that requires a thoughtful and comprehensive approach. By recognizing the signs, implementing clear policies, providing support, protecting clients, and promoting wellness, law firms can effectively address this issue while maintaining their commitment to ethical and effective legal practice. It’s not just about the well-being of the lawyers, but also about the integrity of the legal profession and the trust of the clients they serve.
Steven Schwartz is a principal at Brown & James in St. Louis who has defended lawyers in legal malpractice cases, malicious prosecution cases and ethics complaints for more than 30 years. He can be reached at sschwartz@bjpc.com. The views expressed in this article are not intended to be taken as legal advice.