Opinion: When Attorneys Are 'A Little Off'
I was running with a colleague the other day and she described another lawyer as follows: "He's like you; smart, but a little off." Thanks! I think.
I was musing over that comment recently as I participated in a symposium on impaired lawyers. (The subject of the meeting also included impaired judges, but we really did not go there. Dealing with lawyers was enough.) So what do you do if a colleague is more than a little off? Do you have a duty to say something?
With the creation of the lawyers' assistance program, funded by our client security fund payments and administered by Lawyers Concerned for Lawyers, we as a profession have begun to acknowledge the 600-pound gorilla at the bar—that many of us have problems, and we pay precious little attention to our health, both mental and physical, until bad things happen.
When the lawyers' assistance program began, I and many others thought it would just be a redo of the extant AA program that worked for years quietly attending to the problems of lawyers addicted to alcohol and, to a lesser extent, drugs. No one realized that eight years or so into it, the program would be spending much of its resources on other forms of impairment, including those arising from mental and physical illnesses.
Problems such as depression, anxiety, and stress bring many of us to a bad place. Other less known but equally serious troubles such a eating disorders, process addiction (gambling, shopping), workaholicism, and other sequallae of the Type A personality have led to bad results and shortened careers. Even things such as diabetes, endocrine disorders and the effects of chemotherapy have cause some lawyers to run into trouble.
We are also now seeing the leading edge of the "senior tsunami" heading none too smoothly into the natural decline associated with aging, compounded with more pronounced problems caused by the effects of degenerative processes like Alzheimer's.
Many of us, when faced with a colleague in trouble or even in decline, have looked the other way, realizing that becoming involved in another's problems is a slippery slope and being pretty much overwhelmed with our own troubles, deadlines and responsibilities. Maybe that has to change.
The "Rule 5" ethics regime makes lawyers responsible for others they work with, either as colleagues or in a supervisory capacity. It applies equally both to lawyers and to legal staff. Some of us have suffered big losses when addicted staff took liberties with clients' funds. While Rule 5.1-5.3 are rules of supervisory rather than vicarious liability, they do create duties and consequences if we don't attend to the problems of colleagues of which we are aware.
Rule 2.14 of the Code of Judicial Conduct mandates that a judge who is aware of an impaired lawyer or fellow judge must take responsive and remedial action. That is easier said than done, as judges must always be careful not to upset the power balance of matters before them, and even the most benign intervention may advantage or disadvantage a party. On the other hand, can justice truly be served if one party profits because her opponent is operating at something less than an acceptable level of competence due to the effects of an impairment? Doesn't the judge have a duty to intervene, even if it means he will be disqualified from further involvement in the matter? What if the events are in a small courthouse, and there is no other judge to step in and take the matter? Not easy questions.
One of the speakers at the symposium, Bob Grillo, is chief of psychiatry at Middlesex Hospital. He works with a program that the legislature set up to deal with impaired health care providers called Haven. Haven does not offer care, but it manages the treatment and rehabilitation of these professionals, while allowing them to remain working and productive while they wrestle with their personal demons.