Ethical Compliance
Ethical Requirement for Systemic Programs at the Organizational Level
The rules of professional conduct (RPCs) prohibit an attorney from practicing while impaired by substance use disorder (SUD). Placing the onus on the afflicted attorney to act as the arbiter of his own dysfunction is wholly ineffectual. Denial and secretive use behavior are primary characteristics of those suffering from SUD. Studies show that attorneys are particularly sensitive to the stigma of addiction and self-refer for help at far lower rates than the general public.
All jurisdictions have adopted versions of the RPCs materially consistent with the American Bar Association (ABA) Model Rules of Professional Conduct (MRPC) - Rules 1.16, 1.3, 5.1, and 8.3. These rules, analyzed in conjunction, create ethical duties that require attorneys in legal services organizations, who have managerial or supervisory authority, to implement reasonable, proactive measures to ensure that their colleagues are not practicing impaired.
The recent movement to address SUD, and other mental health issues afflicting the legal profession, has resulted in an emphasis on compliance with these ethical mandates. ABA Formal Opinion 03-429 (2003) provides the framework for law firms, partnerships, and other legal services organizations to comply with the relevant RCPs. The RPCs of each jurisdiction should be studied when implementing SUD policies and protocols.
Recent Action Taken by the Profession to Address SUD
In 2016, The ABA, in conjunction with the Hazelden Betty Ford Foundation conducted an expansive study of substance misuse in the legal profession. Patrick Krill, Ryan Johnson & Linda Albert, The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys, 10 J. ADDICT. MED. 46 (2016). Since that time, there has been a concerted push and growing groundswell to address the prolific rates of SUD amongst attorneys.
in 2017 the ABA Board of Governors created the Working Group to Advance Well-Being in the Legal Profession. The recommendations of this effort culminated in the adoption of two resolutions. ABA Resolution 105 was adopted in February 2018. creating the ABA Well-Being Campaign and setting forth the Seven Point Framework for legal employers to adopt and prioritize for attorneys and staff to improve their physical, mental and emotional well-being. In February 2021, the ABA adopted Resolution 300A, placing the onus on federal, state, local, territorial, and tribal courts, bar associations, legal employers, and law schools to develop, assemble, disseminate, promote, and to collaborate to make resources accessible that advance well-being in the entire legal profession, including but not limited to, educational programming, mental health providers, screening, employee assistance programs, referrals to community support groups and state and local lawyer assistance programs.
In addition to the ABA's efforts, a number of state bar associations have recently issued formal opinions detailing and emphasizing the ethical requirements for partners, shareholders, and supervisory lawyers in law firms and other legal service entities to address SUD impaired professionals in their organizations. Click here for more information.
ABA Formal Opinion 03-429
The analysis in ABA Formal Opinion 03-329 focuses on ABA MRPC 1.16 and 5.1, incorporating MRPC 1.3, 1.4, and 8.3. Following the issuance of this opinion, The ABA adopted MRPC 2.14 specifying the obligations of a judge when he or she reasonably believes an attorney is impaired.
ABA MRPC 1.16: Declining or Terminating Representation. [a] lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if . . .
(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client. . .
ABA MRPC 1.3: Diligence. A lawyer shall act with reasonable diligence and promptness in representing a client.
ABA MRPC 2.14: Disability and Impairment. A judge having a reasonable belief that the performance of a lawyer or another judge is impaired by drugs or alcohol, or by a mental, emotional, or physical condition, shall take appropriate action, which may include a confidential referral to a lawyer or judicial assistance program.
ABA MRPC 5.1: Responsibilities of a Partner or Supervisory Lawyer. (a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.
(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.
(c) A lawyer shall be responsible for another lawyer's violation of the Rules of Professional Conduct if:
(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
ABA MRPC 8.3: Reporting Professional Misconduct
(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.
(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority.
(c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.
ABA Formal Opinion 03-429 details the steps a law firm or other legal services organization must take in order for partners, shareholders, managers and other supervisory attorneys (collectively, "Responsible Attorneys") to avoid breaching their independent ethical duties to address impaired colleagues in their organizations.
The Responsible Attorneys must "make 'reasonable efforts' to establish internal policies and procedures designed to provide 'reasonable assurance' that all lawyers in the firm, not just lawyers known to be impaired, fulfill the requirements of the Model Rules. The measures required depend on the firm’s size and structure and the nature of its practice."
Reasonable Efforts to Provide Reasonable Assurance
Unfortunately, there is little in the way of guidance for law firms and legal service organizations defining action that constitutes "reasonable efforts" to establish internal policies and procedures designed to provide "reasonable assurance" that all lawyers in the firm are practicing free from impairment.
At the very least, "reasonable efforts" to provide "reasonable assurance" in the context of SUD require an understanding of the problem at the organizational level, and how to efficaciously prevent, identify, treat, monitor, and support the recovery of an afflicted colleague. The systemic protocols developed by the airline industry through its HIMS system, and the medical profession's PHP program have proven to be highly efficacious, decades after implementation. The framework of these programs are easily adaptable to the legal profession, with minor alterations, and the financial return from enacting proven protocols is exponentially greater than their cost.
The vast majority of law firms, partnerships and other legal service organizations simply don't have reasonably efficacious SUD protocols in place. The common practice, which has been proven to be ineffectual, is to offer a standard model employee assistance program (EAP). The standard EAP model puts the onus on the afflicted attorney to seek help. We know that the those with SUD, and especially addicted legal professionals, almost never follow-through and seek help, absent strong external motivation. It has been empirically proven that standard EAPs reach only a fraction of those suffering from SUD who need help.
Even when help is sought, there is very little to no structure provided to ensure aftercare compliance monitoring. There is an unacceptably high probability that SUD attorneys will continue to practice impaired following treatment, unless effective monitoring programs are in effect. Monitoring is critical to ensure that the firm's clients aren't at risk of having their matters handled by an attorney who is practicing while impaired by SUD.
Reasonable practices at the organizational level also require that legal service providers take steps to identify those who suffer from SUD impairment, and those who are at risk of developing SUD impairment. Regular periodic surveys of firm personnel are effective in identifying those with SUD, and those at risk. Educational campaigns to raise awareness also reduce the incidence of SUD. Organizational protocols and rules that reasonably address substance use in the work place, and work related social environments, have been shown to reduce the incidence of SUD.
There are a number of strategies that legal services organization can reasonably employ that are effective. Not only do these strategies ensure compliance with the organization's ethical duties, they are also extraordinarily advantageous from a financial, cost-benefit standpoint.