Washington Lawyer - January/February 2020 - 48

SPEAKING OF E THICS

IT'S TIME TO TALK ABOUT

LAWYER IMPAIRMENT

EDITORS' NOTE: Starting this issue,
the ethics column is returning to its
original format and title to give D.C.
Bar members a more in-depth look
at the ethical issues and questions
confronting them in their practice.

By Hope C. Todd

I

n July 2017, Eilene Zimmerman penned a deeply
personal and devastating article in the New York
Times entitled "The Lawyer, the Addict."1 In her
attempt to make sense of how her ex-husband,
Peter - a brilliant, athletic, successful patent lawyer
and law firm partner - died of a drug overdose
on his bathroom floor, she directed a spotlight on
the substance abuse and mental health issues of
American lawyers. Her search for answers aligned
with the profession's own attempts to get a handle
on the breadth and depth of a wellness crisis in law
schools and law firms nationwide.
In a widely cited 2016 study of nearly 13,000
practicing lawyers across 19 states,2 the
American Bar Association Commission on
Lawyer Assistance Programs and the Hazelden
Betty Ford Foundation found that over 21
percent of surveyed lawyers qualified as
"problem drinkers" and that approximately
28 percent, 19 percent, and 23 percent were
struggling with some level of depression,
anxiety, and stress, respectively.3
Also released in 2016, the Survey of Law Student
Well-Being, which included responses from over
3,300 law students from 15 law schools,4 found
that 17 percent of law students experienced
some level of depression, 14 percent experienced severe anxiety, 23 percent had mild or
moderate anxiety, and 6 percent reported
serious suicidal thoughts in the past year. The
survey also evidenced significant alcohol use
and abuse among law students.5
In response to these disturbing results, the
National Task Force on Lawyer Well-Being was
formed, and it issued The Path to Lawyer WellBeing: Practice Recommendations for Positive
Change in August 2017 to address issues of
lawyer substance abuse and impairment and to
provide action plans.6 In the report's cover
letter, the task force did not mince words:
The[se] two studies reveal that too many
lawyers and law students experience
chronic stress and high rates of depression
and substance use. These findings are
incompatible with a sustainable legal profession, and they raise troubling implications for many lawyers' basic competence.

48 WASHINGTON LAWYER

*

In Legal Ethics Opinion 377: Duties When a
Lawyer Is Impaired, the D.C. Bar Legal Ethics
Committee examines ethical duties when
lawyers reasonably believe that another lawyer
in the same firm or government agency is suffering from a significant mental impairment that
poses a risk to clients.7 The opinion primarily
addresses three ethical mandates, including (1)
the obligations of managerial and supervisory
lawyers to take steps to prevent an impaired
lawyer from violating the Rules of Professional
Conduct, (2) the obligations of a lawyer who
has actual knowledge that an impaired lawyer
in the same firm or agency has already violated
the Rules, and (3) the obligations that arise
when an impaired lawyer leaves a firm.
Opinion 377 underscores the inherent tension
between the legal rights of an impaired lawyer
(including privacy rights) and lawyers' ethical
duties. The opinion cautions throughout that
supervisory lawyers in firms and agencies must
understand and respect those legal rights,
including legal limitations on communications
to third parties about a lawyer's impairment
such as communications with clients, former
clients, and regulatory bodies.

PARTNERS, MANAGERS
& SUPERVISORY LAWYERS
Pursuant to D.C. Rule 5.1, partners and other
lawyers who possess comparable managerial
authority in firms and government agencies
shall make reasonable efforts to ensure
that all lawyers and those under their
supervision comply with the applicable
Rules and to ensure that the [organization]
has in effect measures giving reasonable
assurance that all lawyers in the firm or
agency conform to the Rules.
A lawyer's impairment may significantly
increase the risk of ethical misconduct and
harm to clients, including violations of Rule 1.1
(Competence),8 Rule 1.3 (Diligence and Zeal),
and Rule 1.4 (Communication).9
Although Opinion 377 stops short of concluding that Rule 5.1 requires all law firms and
agencies to have written policies regarding

JANUARY/FEBRUARY 2020

impairment, it affirms that written policies can
be important tools for managers and supervisory lawyers and may facilitate the ability of an
organization to create measures that provide
reasonable assurance that its lawyers conform
to the Rules.

IDENTIFYING IMPAIRMENT
Opinion 377 explains that Rule 5.1 requires a
managerial or supervisory lawyer to investigate
a report of a potentially impaired lawyer, and
"if the report is meritorious, to take appropriate
measures to ensure the impaired lawyer's
conduct complies with the Rules."
However, identifying lawyer impairment in
the first instance may require changes in
how a workplace communicates about, and
responds to, lawyer wellness issues. For struggling lawyers, the most common barrier to
seeking help is the fear of discovery by others,
including employers.10
Opinion 377 recognizes that another barrier
to identifying lawyer impairment within a
firm or agency may be fears about reprisal or
retaliation. As such, the Legal Ethics Committee
recommends that organizations consider
"implementing practices and procedures that
encourage and support reporting of concerns
or observed impairment to the appropriate firm
or agency personnel," including procedures
for anonymous reporting.11

ADDRESSING IMPAIRMENT
& PROTECTING CLIENTS
Although a fundamental purpose in identifying
lawyer impairment is to encourage individuals
to seek assistance and treatment, the primary
ethical obligation of lawyers is to protect the
interests of their clients. When addressing an
impaired attorney, Opinion 377 recommends
a direct approach:
1. Speak with the impaired lawyer about the
perceived impairment and the need for
remediation;
2. Require the impaired lawyer to seek assistance or professional evaluation as a condition of continued employment; and/or
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